United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 16-0729
Issued: November 4, 2016

Case Submitted on the Record

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

JURISDICTION
On March 1, 2016 appellant filed a timely appeal from an October 9, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated February 9, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 12, 2013, the
Board set aside October 3 and June 6, 2012 OWCP merit decisions and remanded the case for
1

5 U.S.C. § 8101 et seq.

reconstruction of the case record.2 The Board ordered OWCP to combine OWCP File Nos.
xxxxxx570, xxxxxx577, and xxxxxx710 with the instant case File No. xxxxxx849, due to the
overlapping nature of the claims.3 Following reconstruction of the case record, OWCP was
instructed to issue a de novo merit decision in order to protect appellant’s appeal rights. By
decision dated August 14, 2013, OWCP issued a de novo decision denying appellant’s
occupational disease claim and denying modification of the prior June 6, 2012 decision. It found
that while appellant’s treating physician provided a description of the work factors, they failed to
establish that these factors caused the bilateral knee condition. The facts and circumstances of
the case as discussed in the prior appeal are incorporated herein by reference.
In the current claim, on July 26, 2011 appellant, then a 28-year-old carrier, filed a
traumatic injury claim (Form CA-1) assigned File No. xxxxxx849, alleging that he developed
severe swelling in the knees after returning to work from his prior injury on July 21
and 22, 2011. He stopped work on July 22, 2011.
By decision dated September 9, 2011, OWCP denied the claim, finding the evidence of
record failed to establish that appellant’s medical condition was causally related to employment
factors.4 Appellant requested reconsideration on March 12, 2012.
By decision dated June 6, 2012, OWCP denied modification of its September 9, 2011
decision. The claims examiner reviewed the medical evidence of record and referenced certain
medical evidence contained in File No. xxxxxx710, which included a functional capacity
examination and second opinion examination pertaining to appellant’s work capacity on
July 21, 2011. Appellant again requested reconsideration on July 3, 2012.
In an October 3, 2012 decision, OWCP denied modification of its June 6, 2012 decision
as the medical evidence submitted in support of his reconsideration claim did not provide a firm
medical diagnosis or any explanation as to how the work duties he performed on the two
workdays exacerbated unspecified preexisting conditions.
On November 3, 2012 appellant requested an appeal before the Board. The appeal was
docketed as No. 13-204.5
On January 28, 2013 appellant returned to work in a limited-duty capacity.
2

Docket No. 13-204 (issued April 12, 2013).

3

The record reflects that appellant has filed additional, prior workers’ compensation claims. Appellant’s
August 7, 2008 occupational disease claim was accepted for bilateral medial meniscus tears in OWCP file number
xxxxxx570. His July 27, 2009 claim under OWCP file number xxxxxx577 was accepted for traumatic arthropathy
of both legs and, bilateral medial and lateral meniscal knee tears. Appellant’s October 5, 2010 occupational disease
claim was accepted under OWCP file number xxxxxx710 for bilateral lower leg localized primary osteoarthritis and
bilateral osteochondritis dissecans. Appellant was on the supplemental rolls under this claim until July 18, 2011
when he accepted a limited-duty full-time position.
4

As appellant was claiming factors of employment that occurred over a period of more than one workday, OWCP
converted the claim into an occupational disease claim.
5

Supra note 3.

2

By decision dated January 9, 2014, OWCP denied modification of the August 14, 2013
decision, finding that the evidence of record failed to explain how factors of his federal
employment caused or aggravated his preexisting conditions.
On April 11, 2014 appellant requested reconsideration. By decision dated July 7, 2014,
OWCP vacated the January 9, 2014 decision and accepted appellant’s claim for aggravation of
bilateral knee osteoarthritis.
On October 27, 2014 appellant filed a recurrence claim (Form CA-2a) alleging a
return/increase of disability on September 24, 2014. In his October 21, 2014 statement, he
reported that he was working limited duty when he returned to work. Appellant’s limitations
included 3.5 hours of street work, limited standing, no bending, and no lifting over 10 pounds.
He noted that he had a November 5, 2013 magnetic resonance imaging (MRI) scan of the right
and left knee, received injections in April 2014, and started physical therapy in July 2014.
Appellant explained that on September 23, 2014 he was on his assigned route and his symptoms
from his previous injuries spontaneously appeared. He sought treatment with his physician on
September 30, 2014 who determined appellant was unfit to work which was evidenced by his
November 2013 MRI scan. Appellant believed that he had chronic severe pain, swelling,
inflammation, buckling and stiffness of the knees, exhaustion, and anxiety as a result of the
spontaneous worsening of his condition. On the reverse side of the form, the employing
establishment noted that appellant never exceeded more than the 3.5 hours of street work, limited
standing, and was not required to lift more than 10 pounds as stipulated in his work restrictions.
In a September 30, 2014 medical report, Dr. Louis C. Rose, a Board-certified orthopedic
surgeon and appellant’s treating physician, reported the physical examination of the left knee
revealed moderate swelling and marked tenderness at the medial and lateral joint lines while the
right knee revealed mild swelling and marked tenderness at the medial and lateral joint lines. He
restricted appellant from working for six weeks after which he would be further evaluated.
By letter dated January 8, 2015, OWCP informed appellant that the evidence of record
was insufficient to support his recurrence claim. Appellant was advised of the medical and
factual evidence needed and was directed to submit it within 30 days.
In support of his claim, appellant submitted physical therapy treatment notes and medical
reports from Dr. Rose dated November 11 and December 23, 2014, and February 3, 2015.
Dr. Rose’s medical reports provided findings on physical examination and noted review
of a November 5, 2013 MRI scan of the left knee which revealed degenerative changes including
Grade I degenerative changes of posterior horn medial meniscus. He diagnosed exacerbated
bilateral osteoarthritis and lateral joint, noting that the condition was worsening. Dr. Rose
provided modification of activities to avoid injury and cautioned appellant against any impact or
significant forceful extending and bending of the joint which would cause further injury.
Appellant was further restricted from kneeling or squatting activities. In his November 11, 2014
medical report, Dr. Rose restricted appellant from work. In his December 23, 2014 report, he
advised that appellant could work full-time, light duty. In his February 3, 2015 report, Dr. Rose
advised that appellant could resume light-duty work on February 10, 2015 with 3 hours of
delivering mail, 1.5 hours of casing mail inside, and 8 hours of partial post.

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By decision dated February 9, 2015, OWCP denied appellant’s recurrence claim as the
medical evidence of record failed to establish that his alleged disability beginning September 24,
2014 was due to a material change/worsening of his accepted work-related conditions.
On July 7, 2015 appellant requested reconsideration. In support of his claim, he
submitted physical therapy notes, requests for medical treatment, and medical reports.
In a March 23, 2015 report, Dr. Daniel Lerer, a Board-certified diagnostic radiologist,
reviewed a right knee MRI scan and found mild soft tissue swelling, small right knee joint
effusion, and status post arthroscopy with no gross meniscal tear. He noted mild diffuse mucold
degeneration of the “anterior cruciate ligament,” no ligamentous tear, and mild perlarticular
spurring.
In another March 23, 2015 diagnostic report, Dr. Lerer reported that an MRI scan of the
left knee revealed mild soft tissue swelling, small left knee joint effusion, and small Baker’s cyst.
He found no meniscal or ligamentous tear. Dr. Lerer further noted an arthroscopy scar within
Hoffa’s fat and mild degenerative fibrocystic change within the posterior medial tibial plateau,
slightly away from the articular surface and without significant change.
Appellant also submitted medical reports from Dr. Rose dated February 3, March 17,
April 28, June 8, and July 20, 2015 documenting physical examination findings and work
restrictions. Dr. Rose reported that appellant was currently working full-time, light duty.
In a June 19, 2015 narrative report, Dr. Rose reported that appellant had sustained an
injury to his bilateral knees on July 22, 2011 while working for the employing establishment as a
letter carrier which required him to ambulate for extended periods of time and climb stairs.
Appellant was wearing knee braces and developed swelling about the bilateral knees. He
complained of aching pain, stiffness, and swelling. Dr. Rose provided findings on physical
examination and reviewed the diagnostic testing.
The March 23, 2015 MRI scan of the right knee revealed mild soft tissue swelling, small
right knee effusion, no gross meniscal tear, mild diffuse mucoid degeneration of the ACL, no
ligamentous tear, and mild periarticular spurring. Dr. Rose diagnosed osteoarthritis of the
bilateral knees with exacerbation of a preexisting condition and probable bilateral medial and
lateral meniscal tears.
Dr. Rose described the July 22, 2011 employment incident and reported that appellant
had a permanent partial disability which was causally related to the history as stated and the
direct result of sustaining injuries while at work as a letter carrier for the employing
establishment. He opined that appellant had developed these symptoms and injuries due to the
type of work he performed on a daily basis which required long periods of ambulation and stair
climbing. Dr. Rose noted that his condition continued to worsen over the past four years. He
further noted that appellant developed significant pain, as well as limited range of motion, and
would continue to have worsening symptoms making it difficult for him to lift, carry, push, or
pull even light objects, stand, or walk for extended periods of time. Dr. Rose further restricted
him from crouching, kneeling, and the use of stairs. He concluded that appellant was moderately

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disabled on a permanent basis and would require continued physical therapy, use of antiinflammatory and analgesic medications, injections, and bilateral total knee arthroplasties.
By decision dated October 9, 2015, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 (a) of FECA,6
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.7 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.8
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his July 7, 2015 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law nor did he advance a relevant legal
argument not previously considered by OWCP. The issue in this case was whether appellant was
totally disabled on or after September 24, 2014 due to a worsening of his accepted work-related
bilateral knee condition. That is a medical issue which must be addressed by relevant medical
evidence.9 Appellant, however, failed to submit relevant and pertinent new medical evidence in
support of his claim.10
While appellant submitted new medical reports dated March 17, April 28, June 8 and 19,
and July 20, 2015 from his treating physician Dr. Rose, these reports are irrelevant to his claim.
Dr. Rose’s treatment notes dated March 17, April 28, June 8, and July 20, 2015 were essentially
identical to the previously submitted notes dated September 20, 2014 through February 3, 2015.
While the reports provided findings on physical examination and discussed appellant’s treatment,
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

9

C.B., Docket No. 08-1583 (issued December 9, 2008).

10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

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they do not address the relevant issue of causal relationship. As these reports are duplicative of
the deficient evidence already of record, they do not constitute a basis to reopen the case.11
Dr. Rose’s June 19, 2015 report did not address the relevant issue in this claim and made
no mention of a specific period of disability. The medical reports dated March 17 through
July 20, 2015 do not provide any support for a recurrence of disability as they acknowledge that
appellant was working full-time limited duty.12
Dr. Lerer’s March 23, 2015 report only provided diagnostic findings of the right and left
knee with no opinion on disability. Appellant has not submitted any medical evidence showing
that he sustained a recurrence of disability due to his accepted employment injury beginning
September 24, 2014.13 The Board has held that the submission of evidence which does not
address the particular issue involved does not constitute a basis for reopening a case.14 While
appellant submitted new evidence, it was not relevant and pertinent as the reports failed to
provide a rationalized opinion addressing whether he sustained a recurrence of disability on or
after September 24, 2014 as a result of his accepted employment-related injuries.15
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3).

11

See J.P., 58 ECAB 289 (2007); T.K., Docket No. 16-813 (issued July 20, 2016).

12

See David J. McDonald, 50 ECAB 185 (1998).

13

L.J., Docket No. 14-523 (issued August 7, 2014).

14

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

15

Q.W., Docket No. 14-147 (issued May 19, 2014).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration for
merit review under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 9, 2015 is affirmed.
Issued: November 4, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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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 NAVY, NAVAL AIR
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STATION, Grove, PA, Employer
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___________________________________________ )
R.M., Appellant

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-537
Issued: September 21, 2009

Case Submitted on the Record

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

JURISDICTION
On December 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 13, 2008 which denied modification of a
February 7, 2008 decision which granted him a schedule award for 12 percent bilateral hearing
loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award in this case.
ISSUE
The issue is whether appellant has more than 12 percent bilateral hearing loss for which
he received a schedule award.
FACTUAL HISTORY
In January 2004 appellant, then a 52-year-old boiler plant operator, filed a claim for
compensation benefits alleging that he developed hearing loss due to his federal employment.

He became aware of his hearing loss on August 13, 1998 and was exposed to noise at his federal
employment until his retirement on April 3, 2006.1
The employing establishment submitted employing establishment audiograms dated
April 30, 1981 to May 15, 1998 which revealed progressive bilateral high frequency hearing
loss. Also submitted was an industrial hygiene survey dated January 1984 and October 4, 2002.
Appellant submitted an employment history with a job description for a boiler plant
operator/mechanic. In accompanying statements, he noted working from April 1970 to
February 1972 as an airman in fire rescue and minor aircraft maintenance; from February 1972
to 1974 in assembly line manufacturing, installing tail lights and pop-riveted sheet metal parts;
from June 1975 to October 1975 as an auto equipment serviceman with the employing
establishment; from October 1975 to July 1977 as a general helper in the boiler house, and in
July 1977 as a boiler plant operator where he operated high pressure steam boilers and
dismantled the main boilers for maintenance. Appellant was exposed to noise from compressor,
pumps, boilers and generators and was provided with hearing protection.
An April 20, 2004 statement of accepted facts set forth appellant’s noise exposure history
prior to and during his employment with the employing establishment.
The employing establishment submitted employer medical records which noted that
appellant participated in an occupational health and hearing conservation program from April 17,
1985 through May 15, 1998 and was tested annually. The records revealed that appellant
sustained bilateral mild hearing loss and was issued foam earplugs.
By letter dated March 4, 2004, the Office referred appellant and the statement of accepted
facts to Dr. Emil P. Liebman, a Board-certified otolaryngologist, for an otologic examination and
an audiological evaluation. Dr. Liebman performed an otologic evaluation of appellant on
May 18, 2004 and audiometric testing was conducted on his behalf on the same date. Testing at
the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed the
following: right ear 0, 20, 35 and 45 decibels; left ear 0, 15, 35 and 45 decibels. Dr. Liebman
determined that appellant sustained bilateral symmetrical high frequency sensorineural hearing
loss which was at least in part due to the noise exposure encountered in appellant’s employment.
On July 19, 2004 an Office medical adviser reviewed Dr. Liebman’s report and the
audiometric test of May 18, 2004. The medical adviser concluded that, in accordance with the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,2 (A.M.A., Guides), appellant had zero percent bilateral sensorineural hearing loss
for a zero percent impairment for bilateral hearing loss. The medical adviser determined that
appellant’s hearing loss was not severe enough to be ratable for a schedule award after applying

1

In his Form CA-2, appellant also alleged that he developed asbestosis as a result of his work duties. In a letter
dated March 10, 2004, the Office requested that appellant file a separate occupational disease claim for the alleged
work-related asbestosis.
2

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

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the Office’s current standards for evaluating hearing loss to the results of the May 18, 2004
audiology test.
On July 22, 2004 the Office accepted appellant’s claim for bilateral hearing loss. In a
July 22, 2004 decision, it found that the hearing loss was not severe enough to be considered
ratable for purposes of a schedule award.
On August 16, 2004 appellant requested an oral hearing which was held on
May 24, 2005. He submitted employing establishment audiograms from June 25, 1985 to
July 16, 1998 which showed progressive bilateral hearing loss. Also submitted was an
audiogram dated November 29, 2004 performed by Deborah Turofski, an audiologist, who
diagnosed mild to moderate, high frequency sensorineural hearing loss bilaterally and
recommended hearing aids in both ears. Ms. Turofski determined that appellant sustained a 5.93
percent binaural hearing loss.
In an August 17, 2005 decision, the hearing representative vacated the July 22, 2004
Office decision and remanded the case for further medical development.
On September 13, 2005 an Office medical adviser reviewed the November 29, 2004
audiometric test and noted that the audiogram met the Office’s procedural requirements. The
medical adviser concluded that, in accordance with the A.M.A., Guides, appellant had 2.19
percent binaural hearing loss. He noted that appellant reached maximum medical improvement
on November 29, 2004.
On November 8, 2005 the Office advised appellant that, after further development by the
Office, the Office medical adviser determined that he sustained ratable hearing loss causally
related to his federal employment. It advised appellant to file a Form CA-7, claim for a schedule
award. On February 13, 2006 appellant filed a claim for a schedule award.
On October 26, 2007 appellant’s claim was referred to the medical adviser. After
reviewing the November 29, 2004 audiogram as well as the other audiograms in the record, the
medical adviser concluded that the audiogram validity requirements were not satisfied. He
recommended referring appellant to a second opinion physician for otologic examination and an
audiological evaluation.
By letter dated December 13, 2007, the Office referred appellant and the statement of
accepted facts to Dr. Edward Kampsen, a Board-certified otolaryngologist, for an otologic
examination and an audiological evaluation. Dr. Kampsen performed an otologic evaluation of
appellant on January 4, 2008 and audiometric testing was conducted on his behalf on the same
date. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed the following:
right ear 20, 30, 45, and 50 decibels; left ear 10, 25, 45 and 50 decibels. Dr. Kampsen
determined that appellant sustained noise-induced hearing loss which was at least in part due to
the noise exposure encountered in appellant’s employment. He recommended bilateral hearing
aids.
On January 30, 2008 an Office medical adviser reviewed Dr. Kampsen’s report and the
audiometric test of January 4, 2008. He concluded that, in accordance with the A.M.A., Guides,
appellant had 12 percent bilateral sensorineural hearing loss. The medical adviser noted that the
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condition found on examination on January 4, 2008 was aggravated by conditions of federal
employment and diagnosed bilateral sensorineural hearing loss, consistent in part with hearing
loss due to noise exposure. Dr. Kampsen also recommended authorizing bilateral hearing aids.
In a decision dated February 7, 2008, the Office granted appellant a schedule award for a
12 percent bilateral hearing loss. It noted that hearing aids were authorized. The period of the
award was from January 4 to June 19, 2008.
On February 13, 2008 appellant requested reconsideration. Appellant, through his
attorney, asserted that the calculation of the medical adviser was incorrect and appellant was
entitled to a schedule award of 15.94 percent binaural hearing loss.
On February 22, 2008 the Office requested that the medical adviser review the schedule
award calculation based on the January 4, 2008 audiogram submitted by appellant’s counsel and
explain the discrepancy in the impairment determination. In a February 25, 2008 report, the
medical adviser reviewed the schedule award calculation and noted that pursuant to page 250 of
the A.M.A., Guides appellant was entitled to a 12 percent impairment for binaural hearing loss.
The medical adviser noted that appellant’s counsel reversed the order of the data in the standard
formula calculating hearing impairment.
In a March 4, 2008 decision, the Office denied appellant’s reconsideration request on the
grounds that his letter neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant review of the prior decision.
On May 30, 3008 appellant requested reconsideration. He submitted an audiogram from
Contemporary Hearing dated April 28, 2008 performed by Blair Post, an audiologist. In a
June 25, 2008 letter, the audiologist provided a copy of the calibration of the audiometer used in
appellant’s hearing test.
On August 11, 2008 an Office medical adviser stated that the audiometric test of
April 28, 2008 would compute to a slightly higher bilateral hearing loss than the 12 percent
previously granted. However, he opined that it was not a basis for evaluating appellant’s hearing
loss as it did not conform to the Office’s criteria for a valid audiogram which included the
completion of a Form CA-1332.3
In a decision dated August 13, 2008, the Office denied modification of the prior decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
3

A CA-1332 form is the Office’s “Outline for Otologic Evaluation.” The form sets forth lists information to be
completed in a hearing loss evaluation and contains signature blocks for both the audiologist and the reviewing
physician.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

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sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.8 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.9 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.11 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.12
ANALYSIS
The Office properly referred appellant to Dr. Kampsen regarding his hearing loss. An
Office medical adviser reviewed Dr. Kampsen’s findings and concluded that appellant’s hearing
loss was aggravated by his employment. He applied the Office’s standardized procedures to the
January 4, 2008 audiogram performed for Dr. Kampsen. Testing for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibels losses of 20, 30, 45 and
50, respectively. These decibels were totaled at 145 and were divided by 4 to obtain an average
hearing loss at those cycles of 36.25 decibels. The average of 36.25 decibels was then reduced
by 25 decibels (the first 25 decibels were discounted as discussed above) to equal 11.25, which
was multiplied by the established factor of 1.5 to compute a 16.8 percent monaural loss of
hearing for the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and
3,000 cps revealed decibels losses of 10, 25, 45 and 50 respectively. These decibels were totaled
at 130 and were divided by 4 to obtain the average hearing loss at those cycles of 32.5 decibels.
The average of 32.5 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to 7.5, which was multiplied by the established factor of 1.5 to
compute an 11.25 percent hearing monaural loss for the left ear. The lesser loss of 11.25 is
6

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

7

A.M.A., Guides at 250 (5th ed. 2001).

8

Id.

9

Id.

10

Id.

11

Id.

12

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).

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multiplied by 5, then added to the greater loss of 16.88 and the total is divided by 6 to arrive at
the amount of the binaural hearing loss of 12.19 or 12 percent.
Appellant submitted an audiogram dated April 28, 2008, performed by an audiologist,
who noted testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibels losses of 20, 30, 50 and 50 respectively and for the left ear revealed decibels
losses of 25, 35, 45 and 50. In correspondence dated June 5, 2008, the audiologist provided a
copy of the calibration of the audiometer used in appellant’s hearing test. However, the April 28,
2008 audiogram was not signed by a physician and the Board has held the audiograms that have
not been certified as accurate by a physician of record are not a proper basis for calculating a
schedule award.13
The Board finds that the Office medical adviser applied the proper standards to the
January 4, 2008 audiogram and found that appellant has 12 percent binaural hearing loss. Under
the Office’s standardized procedures, there is no basis on which to find more than 12 percent
binaural hearing loss for which appellant has received a schedule award.
On appeal appellant through his attorney asserted that there was a conflict in opinion with
regard to the audiogram results. Appellant specifically noted that the January 4, 2008 audiogram
performed on behalf of the second opinion physician, yielded 15.94 percent impairment and an
April 28, 2008 audiogram by Contemporary Hearing yielded 19.06 percent impairment which
were greater than the 12 percent binaural hearing loss calculated by the medical adviser. The
Board notes that the medical adviser properly calculated a 12 percent binaural hearing loss by
multiplying the lesser loss of 11.25 by 5, then added to the greater loss of 16.88 and the total is
divided by 6 to arrive at the amount of the binaural hearing loss of 12.19 or 12 percent.
Appellant’s counsel seemingly reversed the order of the data in the standard formula and
multiplied the greater loss of 16.88 by 5, then added that figure to the lesser loss of 11.25,
therefore arriving at an incorrect rating. The Board further notes that the April 28, 2008
audiogram was not certified as accurate by a physician and therefore not a proper basis for
calculating a schedule award.14 Furthermore, as the April 28, 2008 audiogram was not certified
by a physician, there is no statutory basis for finding a conflict in the medical evidence.15
CONCLUSION
The Board finds that the Office properly determined that appellant sustained 12 percent
binaural hearing loss.

13

See Joshua A. Holmes, 42 ECAB 231 (1990).

14

Id. (the Office does not have to review every uncertified audiogram which has not been prepared in connection
with an examination by a medical specialist; it is appellant’s burden of proof to submit a properly certified
audiogram by a medical specialist).
15

5 U.S.C. § 8123(a) provides for a conflict in the medical evidence when there is a disagreement between the
physician of the employee and the physician making the examination for the United States.

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ORDER
IT IS HEREBY ORDERED THAT the August 13, March 4 and February 7, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 21, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

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Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.3
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.

3
The Board notes that, following the May 25, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
2

and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

4

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
PROCESSING & DISTRIBUTION CENTER,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1965
Issued: February 10, 2021

Case Submitted on the Record

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

JURISDICTION
On September 26, 2019 appellant, through counsel, filed a timely appeal from an April 11,
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.3

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.

3
The Board notes that, following the April 11, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of the claim should be expanded to include the additional conditions of cervical radiculopathy,
cervical facet syndrome, cervical and lumbar radiculopathy, bilateral carpal tunnel syndrome, and
bilateral wrist tenosynovitis as causally related to the accepted January 2, 2017 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On January 3, 2017 appellant, then a 60-year-old bulk mail technician, filed a traumatic
injury claim (Form CA-1) alleging that while at work on January 2, 2017 a chair rolled from out
under her causing her to fall to the right side of her body while in the performance of duty. She
alleged that this caused pain in her back, left chin, and right leg, which radiated to her hip, neck,
and right arm. Appellant also alleged subsequent sporadic headaches. She stopped work on
January 3, 2017.
By decision dated March 2, 2017, OWCP found that the January 2, 2017 incident occurred
as alleged, but denied the claim, finding that appellant had not submitted medical evidence
containing a medical diagnosis in relation to the accepted employment incident. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
On March 17, 2017 appellant, through counsel, requested a hearing before an OWCP
hearing representative, which was held on July 12, 2017.
In support of her hearing request, appellant submitted reports from Dr. Steven J. Valentino
and Dr. Scott M. Fried, both osteopaths Board-certified in orthopedic surgery. In an April 18,
2017 report, Dr. Valentino diagnosed cervical (neck) pain, sprain of ligaments of cervical spine
and lumbar spines, and cervical radiculitis caused by the January 2, 2017 employment incident. In
a June 15, 2017 report, Dr. Fried diagnosed right median and radial neuropathy, left median
neuropathy, right brachial plexopathy/cervical radiculopathy, scapular winging with long thoracic
neuritis, cervical strain and sprain with right radiculopathy and aggravation of cervical disc
disease, disc space narrowing at multiple levels with radiculopathy, and right shoulder rotator cuff
strain and sprain caused by the work incident.
By decision dated August 18, 2017, OWCP’s hearing representative modified the March 2,
2017 decision, finding that appellant had established cervical and lumbar sprains and a right
shoulder sprain causally related to the accepted January 2, 2017 employment injury. He further
found, however, that the medical evidence of record was insufficient to establish that the additional
conditions of cervical radiculopathy, cervical facet syndrome, cervical and lumbar radiculopathy,
bilateral carpal tunnel syndrome, and bilateral wrist tenosynovitis were causally related to the
January 2, 2017 employment injury.

4

Docket No. 18-0525 (issued November 12, 2018).

2

On January 18, 2018 appellant, through counsel, filed a timely appeal with the Board. By
decision dated November 12, 2018, the Board affirmed the August 18, 2017 decision.5 During the
pendency of that appeal, appellant submitted additional medical evidence including a number of
reports from Dr. Fried dated from August 8, 2017 to July 31, 2018. In the July 31, 2018 report,
Dr. Fried described her complaints of neck pain radiating into the scapular region and the arms.
He described physical examination findings including positive Phalen’s test bilaterally, and
positive Tinel’s test bilaterally. Dr. Fried diagnosed right median and radial neuropathy, left
median neuropathy, bilateral brachial plexopathy/cervical radiculopathy, scapular winging grade
2 and with long thoracic neuritis, cervical strain and sprain with right radiculopathy, aggravation
of cervical disc disease with disc space narrowing at multiple levels with radiculopathy, and right
shoulder rotator cuff strain and sprain. He advised that appellant should remain off work. On a
work capacity evaluation (Form OWCP-5c) dated May 7, 2018, Dr. Fried indicated that she could
work with restrictions.
In a February 6, 2018 letter, Dr. Fried advised that he wished to clarify further that
appellant’s left carpal tunnel syndrome occurred due to an overuse and subsequent aggravation
which resulted in trauma to the left carpal tunnel and its contents. He continued that the left carpal
tunnel syndrome was due to overuse on the left to compensate for the right hand injury, and this
subsequent aggravation on the left resulted in the carpal tunnel pathology.
Dr. Fried continued to submit periodic treatment notes in which he reiterated his findings
and conclusions and advised that appellant could continue part-time modified-duty work.
In a report dated December 5, 2018, Dr. Valentino noted appellant’s complaints of neck
pain that radiated into both arms and low back pain radiating into the legs with paresthesias.
Examination demonstrated significantly limited neck and lumbar range of motion with positive
Spurling’s maneuver and straight leg raising test. Dr. Valentino diagnosed cervical pain, cervical
radiculopathy, cervical spinal stenosis, cervical degenerative disc disease, and lumbar
radiculopathy. In a letter to counsel of even date, he explained that appellant had confirmed that
her injury occurred when she fell onto her right side when a chair rolled out from under her and
she first landed on her buttocks and then tilted to the right. Dr. Valentino concluded that the
mechanism of injury was consistent with the aggravation of cervical and lumbar degenerative disc
disease causing cervical and lumbar radiculopathy. He explained that the fall on appellant’s
buttocks would have caused a force to be transmitted up to her spine, and the tilting to the right
would have further caused compression and irritation of the exiting nerve roots. In a brief note
dated January 8, 2019, Dr. Valentino held her off work.
On January 11, 2019 appellant, through counsel, requested reconsideration.
Dr. Fried continued to submit treatment notes describing his findings and diagnoses. In a
report dated March 26, 2019, he related that on physical examination appellant had positive
bilateral Phalen’s tests, and positive bilateral Tinel’s tests, and positive bilateral Roos and Hunter’s
tests. Dr. Fried continued to diagnose median and radial right neuropathy, median left neuropathy,
brachial plexopathy/cervical radicupathy on the right, scapular winging Grade 2, with long
thoracic neuritis, cervical strain/strain with radiculopathy on the right, aggravation of cervical disc

5

Id.

3

disease, multiple levels disc space narrowing with radiculopathy, and right shoulder rotator cuff
strain/sprain. OWCP also continued to receive numerous physical therapy reports.
On March 20, 2019 appellant saw Dr. Deborah K. Witt, a family medicine practitioner. On
examination she noted that appellant had normal range of motion of the neck and normal
musculoskeletal range of motion.
By decision dated April 11, 2019, OWCP denied modification.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 The opinion of
the physician must be based on a complete factual and medical background, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment incident.8
OWCP’s procedures provide that carpal tunnel syndrome is a condition which involves the
compression of the medial nerve between the longitudinal tendons of the wrist musculature and
the transverse superficial carpal ligament along the palmer aspect of the wrist. Symptoms resulting
from this compression include pain, numbness, tingling, and weakness of the affected hand
(usually the dominant one, though bilateral involvement does occur). Causes which may be work
related include constant exertion and/or repetitive motion with the wrist flexed or extended against
resistance, and acute trauma. A medical report diagnosing carpal tunnel syndrome should contain
clear evidence that the disease is present. Among the clinical findings are: positive Phalen’s sign,
positive Tinel’s sign, neurological abnormalitism, decreased nerve conduction velocity, as
measured during nerve conduction testing, and decreased muscle motor activity, as measured by
electromyography.9
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 8, 2017 decision because the Board
considered that evidence in its November 2, 2018 decision and found that it was insufficient to
establish her claim. Findings made in prior Board decisions are res judicata absent further review
6

S.M., Docket No. 20-0241 (issued August 25, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

B.C., Docket No. 20-0498 (issued August 27, 2020).

8

T.L., Docket No. 19-1467 (issued July 24, 2020); Victor J. Woodhams, 41 ECAB 345 (1989).

9

Federal (FECA) Procedure Manual,
Chapter 3.600.8.c (September 1995).

Part

3

4

--

Medical,

Requirements

for

Medical

Reports,

by OWCP under section 8128 of FECA.10 The Board, therefore, need not review the evidence
addressed in the prior appeal.
With regard to the claimed additional cervical conditions, appellant submitted a
December 5, 2018 report and correspondence of the same date from Dr. Valentino who noted her
complaints of neck pain that radiated into both arms and low back pain that radiated into her legs
with paresthesias. Dr. Valentino described examination findings that included significantly
limited neck and lumbar range of motion and a positive straight leg raising test. He diagnosed
cervical pain, cervical radiculopathy, cervical spinal stenosis, cervical degenerative disc disease,
and lumbar radiculopathy. Dr. Valentino explained that appellant had confirmed that her injury
occurred when she fell on January 2, 2017. He advised that the mechanism of injury was
consistent with the aggravation of cervical and lumbar degenerative disc disease causing cervical
and lumbar radiculopathy, indicating that the fall on her buttocks would have caused a force to be
transmitted up to her spine and the tilting to the right would have further caused compression and
irritation of the exiting nerve roots.
The Board finds that these reports of Dr. Valentino are sufficient to require further medical
development of the claim as he described the January 2, 2017 employment injury and provided an
explanation as to how this work injury contributed to appellant’s cervical and lumbar conditions.
Dr. Valentino is a physician in the appropriate field of medicine and is, therefore, qualified to
render rationalized opinions on the issue of causal relationship.11
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical.12 The Board thus finds that, while insufficiently rationalized to establish the
claim, Dr. Valentino’s opinion is of sufficient probative value to require further development of
the case record by OWCP.13
It is well established that, proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.15 OWCP has an obligation to
see that justice is done.16
On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine,
along with the case record and a statement of accepted facts. The referral physician shall be
10

G.B., Docket No. 19-1448 (issued August 21, 2020).

11

See T.F., Docket No. 19-1900 (issued October 27, 2020).

12

Id.

13

D.D., Docket No. 19-1606 (issued November 16, 2020).

14

R.M., Docket No. 20-0342 (issued July 30, 2020); S.C., Docket No. 19-0920 (issued September 25, 2019).

15

20 C.F.R. § 10.121.

16

F.M., Docket No. 20-0065 (issued November 24, 2020); John J. Carlone, 41 ECAB 354 (1989).

5

instructed to provide a well-rationalized opinion as to whether appellant’s diagnosed cervical and
lumbar conditions are causally related to the accepted January 2, 2017 employment injury. If the
physician opines that the diagnosed conditions are not causally related to the January 2, 2017
employment injury, he or she must explain with rationale how or why their opinion differs from
that articulated by Dr. Valentino.
With regard to appellant’s claimed carpal tunnel syndrome, the Board notes that Dr. Fried
submitted multiple reports, which were not previously reviewed by the Board, in which he noted
physical examination findings consistent with bilateral carpal tunnel syndrome, including positive
Phalen’s and Tinel’s tests bilaterally. As previously noted, OWCP’s procedures outline the criteria
upon which carpal tunnel syndrome can be diagnosed and these procedures also describe the basis
for a finding of causal relationship.17 On February 6, 2018 Dr. Fried advised appellant’s left carpal
tunnel syndrome occurred due to an overuse and subsequent aggravation which resulted in trauma
to the left carpal tunnel and its contents. He continued that the left carpal tunnel syndrome was
due to overuse on the left to compensate for the right hand injury, and this subsequent aggravation
on the left resulted in the carpal tunnel pathology.
On remand OWCP shall also review Dr. Fried’s opinion regarding his diagnosis of carpal
tunnel syndrome in accordance with Chapter 3.600.8(c) of its procedures which lists the
requirements for a medical report when carpal tunnel syndrome is diagnosed. It shall determine
whether appellant’s carpal tunnel syndrome meets the diagnosis and causal relationship criteria as
outlined by OWCP’s procedure, and if further development of the medical evidence is necessary
following review.18 After this and other such further development of the case record as OWCP
deems necessary, it shall issue a de novo decision.19
CONCLUSION
The Board finds that this case is not in posture for decision.

17

Supra note 9.

18

Supra note 9.

19

L.C., Docket No. 20-0505 (issued November 24, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the April 11, 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.20
Issued: February 10, 2021
Washington, DC

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

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

20

Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Kerrville, TX, Employer
__________________________________________

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

Docket No. 13-685
Issued: June 7, 2013

Case Submitted on the Record

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

JURISDICTION
On January 25, 2013 appellant filed a timely appeal from a December 19, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of
her loss of wage-earning capacity (LWEC). 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 properly denied modification of the March 28, 2012 wageearning capacity determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 31, 2011 appellant, then a 39-year-old nursing assistant, filed a traumatic injury
claim alleging that on May 23, 2011 she sustained a left hand and left thumb strain when a
demented patient grabbed her left hand and thumb.2 She stopped work on May 23, 2011 and
returned to limited duty on May 27, 2011. OWCP accepted appellant’s claim for disorder of the
bursae and tendons in the left shoulder and left bicipital tenosynovitis.
On September 30, 2011 appellant underwent left shoulder arthroscopy with arthroscopic
biceps tenodesis and subacromial decompression. She stopped work again and received
disability compensation.
In an October 14, 2011 report, Dr. Casey Taber, a Board-certified orthopedic surgeon,
authorized appellant to return to work full time with restrictions of pushing, pulling, reaching,
twisting and walking up to two hours a day and no overhead reaching or lifting with her left
hand.
On October 16, 2011 appellant accepted a job offer as a modified nursing assistant. The
duties included: dispensing fresh water and nourishments every two hours; cleaning drawers in
patient chests and bedside tables; assisting with patient feeding; cleaning overbed tables and
patients’ rooms; reading to patients; documenting observations; assisting in oral care; answering
call lights and the telephone at the nurse’s station; restocking boxes of gloves; placing name tags
on doors and bedsides; transporting specimens to the lab; changing bed linens; and applying hot
and cold packs. The duties were to be performed within the physical restrictions of absolutely no
lifting, no use of her left hand and no writing with her left hand.
In a November 11, 2011 work status report, Dr. Taber authorized appellant to return to
work with restrictions of pushing, pulling, lifting and carrying up to five pounds for four hours a
day and wrist flexion, extension, reaching, overhead reaching and fine manipulation of the hands
for four hours a day.
On November 14, 2011 appellant accepted a job offer as a modified nursing assistant.
The duties involved dispensing fresh water and other nourishments every two hours, cleaning
drawers in patient chests and bedside tables, assisting with patient feeding, cleaning tables and
rooms, reading mail, books and newspapers to patients, writing and delivering mail for patients,
documenting observations, answering call lights and the telephone, restocking boxes of globes,
placing name tags on doors and bedsides, transporting specimens to the lab, totaling and
recording all intake and outputs, changing bed linens, assembling equipment and performing
catheter care, applying hot and cold packs and performing colostomy care. Appellant was
restricted to five pounds of lifting and to use the buddy system. It required intermittent lifting
and carrying no more than five pounds and to use the buddy system. The physical activities
required to perform these duties also included lifting and carrying up to 10 pounds for 2.6 hours
a day, climbing stairs, bending, stooping, twisting, pushing and pulling, simple grasping and
reaching above the shoulder for 2.6 hours a day and sitting, standing and walking for 5.3 hours a
day.
2

The record reflects that appellant is left hand dominant.

2

By decision dated March 28, 2012, OWCP found that appellant’s actual earnings as a
modified nursing assistant fairly and reasonably represented her wage-earning capacity. As she
had demonstrated the ability to perform her duties for over two months, appellant’s earnings
fairly and reasonably represented her wage-earning capacity. Her earnings were equal to or
exceeded the current earnings of her date-of-injury position, OWCP reduced her wage-loss
compensation to zero.
On March 28, 2012 appellant accepted another restricted-duty job offer as a modified
nursing assistant. The duties involved dispensing fresh water and other nourishments every two
hours, cleaning drawers in patient chests and bedside tables, assisting with patient feeding,
cleaning tables and rooms, reading mail, books and newspapers to patients, writing and
delivering mail for patients, documenting observations, answering call lights and the telephone,
taking and recording patient vital signs, monitoring blood glucose, restocking boxes of globes,
placing name tags on doors and bedsides, transporting specimens to the lab, totaling and
recording all intake and outputs, changing bed linens, assembling equipment and performing
catheter care, applying hot and cold packs and performing colostomy care. The duties were
restricted to no lifting, pulling, pushing or carrying more than 10 pounds and to use the buddy
system. The physical activities required to perform these duties also included lifting and
carrying up to 10 pounds for 2.6 hours a day, climbing stairs, bending, stooping, twisting,
pushing and pulling, simple grasping and reaching above the shoulder for 2.6 hours a day and
sitting, standing and walking for 5.3 hours a day.
On August 6, 2012 appellant filed a claim for recurrence of disability beginning on
September 2, 2012. When she returned to work, she had restrictions of how many pounds she
was able to push, pull and lift and no patient care. Appellant was returned to patient care with
assistant, but she still had to push, pull and lift patients to help. She stopped work on August 6,
2012 and did not return. Appellant also filed claims for disability compensation for the period
August 7 to 26, 2012.
On August 16, 2012 OWCP advised appellant that her recurrence of disability claim was
actually a request to modify her March 28, 2012 LWEC decision. It advised her of the evidence
needed to support her claim.
In an August 27, 2012 statement, appellant explained that the recurrence started when
more resident care assignments were given to her. She described her duties as preparing
residents for daily living such as clothing, hygiene, turning residents during preparation and
using lifts to move residents from bed, toilet, wheel chairs and broda chairs. Appellant explained
that the strain on her injured shoulder and not having physical therapy caused little improvement
in strength and slowed her healing. She submitted medical reports regarding her treatment for
left shoulder and neck symptoms.
In a decision dated December 19, 2012, OWCP denied appellant’s claim for wage-loss
compensation finding that she failed to establish a basis for modifying the March 28, 2012 wageearning capacity determination. It denied wage-loss compensation commencing August 7, 2012.

3

LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.3 Actual wages earned are generally the best measure of wage-earning capacity.4 In the
absence of evidence showing that actual earnings do not fairly and reasonably represent the
injured employee’s wage-earning capacity, such earnings must be accepted as representative of
the individual’s wage-earning capacity.5 A determination regarding whether actual earnings
fairly and reasonably represent wage-earning capacity should be made only after an employee
has worked in a given position for more than 60 days.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS
The Board finds that the March 28, 2012 wage-earning capacity determination was
erroneous.
Appellant underwent left shoulder arthroscopy with arthroscopic biceps tenodesis and
subacromial decompression on September 30, 2011 and was off work. In an October 24, 2011
report, Dr. Taber authorized her to return to full-time limited duty with restrictions of pushing,
pulling, reaching, twisting and walking up to two hours a day with no overhead reaching or
lifting with her left hand. On October 16, 2011 appellant accepted a job offer as a limited-duty
nursing assistant. On November 14, 2011 the employing establishment offered her another
limited-duty nursing assistant position. Appellant accepted the November 14, 2011 limited-duty
job assignment. In a March 28, 2012 decision, OWCP found that her actual earnings as a
limited-duty nursing assistant, effective October 17, 2011, fairly and reasonably represented her
wage-earning capacity.
The Board finds that the wage-earning capacity determination was erroneous because it
was based on the October 17, 2011 limited-duty nursing assistant position, although appellant
accepted another limited-duty nursing assistant position on November 14, 2011.
The
3

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

4

Hayden C. Ross, 55 ECAB 455, 460 (2004).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (October 2009).
7

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

8

Tamra McCauley, 51 ECAB 375, 377 (2000).

4

November 14, 2011 limited-duty nursing assistant position is different than the position first
accepted in October 2011. Although appellant’s duties were similar, the November 14, 2011
limited-duty nursing assistant position included additional duties such as totaling and recording
all intakes and outputs, assembling equipment and performing catheter care and performing
colostomy care. The November 14, 2011 limited-duty nursing assistant position also allowed for
lifting, carrying, pushing and pulling up to five pounds. The October 17, 2011 position did not
allow for any lifting with her left arm. OWCP cannot base a wage-earning capacity
determination on a position the employee did not hold when the LWEC was issued.9 It must not
only consider actual earnings but must also evaluate the suitability of the work currently being
performed.10 OWCP’s March 28, 2012 decision focused only on appellant’s October 17, 2011
position as a limited-duty nursing assistant and not on her current job duties as a limited-duty
nursing assistant accepted on November 14, 2011. The Board also notes that on March 28, 2012,
the same day as the wage-earning capacity determination; she accepted another limited-duty
assignment with physical restrictions of lifting and carrying up to 10 pounds, increased from 5
pounds. The Board finds that the March 28, 2012 wage-earning capacity determination was
erroneous.
Accordingly, appellant has established a basis for modifying the LWEC
determination. Upon return of the case record, OWCP shall determine her entitlement to
compensation benefits.
CONCLUSION
Appellant established that the March 28, 2012 wage-earning capacity determination was
erroneous.

9

C.H., Docket No. 11-1711 (issued February 15, 2012).

10

See supra notes 8 and 9.

5

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 7, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1604
Issued: December 3, 2013

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 June 27, 2013 appellant filed a timely appeal from a May 28, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) suspending her compensation benefits.
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 properly suspended appellant’s compensation benefits
effective May 28, 2013 due to her failure to attend a scheduled medical examination.
FACTUAL HISTORY
This case was previously before the Board. On June 30, 2008 OWCP accepted
appellant’s claim for cervical brachial neuritis or radiculitis. In its June 7, 2012 decision, it
accepted that appellant sustained a recurrence of her work injury from February 13 through
1

5 U.S.C. § 8101 et seq.

June 1, 2012. OWCP denied her claim for compensation, however, for the period December 5,
2011 to February 12, 2012. By decision dated January 28, 2013, the Board affirmed in part and
set aside in part the June 7, 2012 OWCP decision. The Board remanded the case for OWCP to
prepare a statement of accepted facts (SOAF) and develop the medical record as to whether
appellant was totally disabled as a result of her cervical radiculitis condition for the period
December 5, 2011 to February 12, 2012.2 The findings of fact and conclusions of law from the
prior decision and order are hereby incorporated by reference.
OWCP prepared a statement of accepted facts on March 20, 2013 which included a
detailed employment history, job descriptions for each position held, specific functions
performed and restrictions imposed by appellant’s treating physicians.
By letter dated March 20, 2013, OWCP notified appellant that a second-opinion
examination was needed to address her claim for benefits. Appellant was advised that, if she
refused or obstructed the examination, her compensation could be suspended under 5 U.S.C.
§ 8123(d). In a March 28, 2013 letter, QTC Medical Services, Inc., the medical appointment
scheduler, notified appellant that she was scheduled for an appointment with Dr. Robert E.
Holladay, IV, a Board-certified orthopedic surgeon, at 1:00 p.m. on April 17, 2013.
By letter dated April 9, 2013, appellant informed OWCP that she received its March 20,
2013 letter. She contended that OWCP had no justification to request a second opinion
examination. Appellant stated that OWCP had trusted the reports of Dr. Karen M. Perl, her
treating physician, for many years and that her medical condition had not changed. She further
argued that the second opinion request constituted harassment and administrative action taken by
OWCP in an attempt to terminate her benefits.
By letter dated April 30, 2013, OWCP was informed by QJC Medical Services, Inc., that
appellant did not keep her appointment with Dr. Holladay on that date.
On May 1, 2013 OWCP proposed to suspend appellant’s compensation benefits pursuant
to section 8123(d) of FECA for failure to attend the April 17, 2013 examination with
Dr. Holladay. Appellant was advised to provide a written explanation of her reasons, with
substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination.
By letter dated May 3 and 6, 2013, appellant contended that OWCP did not have a valid
reason to request a second opinion examination and should have relied on the reports of her
treating physician. She alleged that she received harassing and threatening telephone calls from
her claims examiner to switch to OPM disability retirement and cease OWCP benefits.
Appellant argues that the second opinion examination was scheduled as retaliation for her
decision to continue receiving OWCP benefits and in an effort to terminate her benefits.
Appellant requested an investigation in the matter. Once OWCP could assure her that the
request for the second opinion examination was not a result of the threatening telephone calls she
received, she would comply and attend the appointment as requested. Appellant submitted

2

Docket No. 12-1368 (issued January 28, 2013).

2

letters dated February 24 and April 9, 2013, previously of record, where she argued that OWCP
was not justified in requesting a second opinion examination.
By decision dated May 28, 2013, OWCP suspended appellant’s wage-loss benefits
effective that same date. It found that it directed appellant to report for an examination
scheduled on April 17, 2013 but she did not attend the examination or establish good cause for
her failure to attend.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.3
The determination of the need for an examination, the type of examination, the choice of locale,
and the choice of medical examiners are matters within the province and discretion of OWCP.4
The implementing federal regulations provide that a claimant must submit to an examination by
a qualified physician as often and at such times and places as OWCP considers reasonably
necessary.5 Section 8123(d) of FECA and OWCP regulations provide that, if an employee
refuses to submit to or obstructs a directed medical examination, his or her right to compensation
is suspended until the refusal or obstruction ceases.6 Before OWCP may invoke these
provisions, the employee is to be provided a period for 14 days within which to present in
writing his or her reasons for the refusal or obstruction.7 If good cause for the refusal or
obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.8
ANALYSIS
OWCP scheduled a second opinion examination on April 17, 2013 with Dr. Holladay.
Appellant did not appear for the scheduled examination. By decision dated May 28, 2013, it
suspended her compensation benefits based on her failure to appear, finding that she did not
establish good cause. The Board finds that OWCP properly suspended appellant’s compensation
benefits for her failure to attend the medical examination on April 17, 2013.
The Board has held that a time must be set for a medical examination and the employee
must fail to appear for the appointment, without an acceptable excuse or reason, before OWCP
can suspend or deny the employee’s entitlement to compensation on the grounds that the

3

5 U.S.C. § 8123.

4

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

5

20 C.F.R. § 10.320.

6

5 U.S.C. § 8123; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
8

Id.

3

employee failed to submit to or obstructed a medical examination.9 In this case, the time for the
second opinion medical examination by Dr. Holladay was set. Appellant was duly notified of
the scheduled appointment by letter dated March 20, 2013, but she failed to appear. The only
remaining issue is whether appellant presented a good cause for her failure to appear.
The Board finds that appellant has not established good cause for her failure to attend the
scheduled April 17, 2013 examination with Dr. Holladay. In letters dated April 9, May 3 and 6,
2013, appellant stated that she did not attend the examination because OWCP did not have a
reasonable basis for requesting such examination and that her claim had remained unchanged
since her initial injury. She further argued that the request for the second opinion examination
was retaliation by her claims examiner who threatened and harassed her for not switching to
OPM disability retirement.
The Board finds that appellant’s explanation of her failure to appear for the scheduled
April 17, 2013 examination lacks good cause.10 In a prior decision, the Board instructed OWCP
to obtain a second-opinion evaluation on the issue of appellant’s claimed disability as a result of
her cervical radiculitis condition for the period December 5, 2011 to February 12, 2012.11
Dr. Perl’s reports were found not sufficient to meet appellant’s burden of proof to establish her
claim. OWCP was directed to further develop the medical evidence. Appellant’s allegations that
OWCP requested a second opinion examination as a retaliatory measure are unsubstantiated by
the evidence of record. OWCP requested the second opinion examination as instructed by the
Board.
The determination of the need for an examination, the type of examination, the choice of
locale and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to
undergo a medical examination, is that of reasonableness.12 The Board has interpreted the plain
meaning of section 8123(d) to provide that compensation is not payable while a refusal or
obstruction of an examination continues.13 There is no evidence that OWCP abused its
discretion in directing the medical examination.14
Appellant has not submitted any evidence that she was incapable of attending the medical
examination scheduled on April 17, 2013. Because she failed to attend the directed medical
examination and did not provide good cause for the failure within 14 days of OWCP’s May 1,
2013 notice of proposed suspension, OWCP properly suspended her compensation benefits.15
9

Herbert L. Dazey, 41 ECAB 271 (1989).

10

D.B., Docket No. 13-727 (issued June 3, 2013).

11

Supra note 2.

12

Lynn C. Huber, 54 ECAB 281 (2002).

13

M.B., Docket No. 10-1755 (issued March 24, 2011).

14

B.C., Docket No. 12-1904 (issued February 1, 2013); J.T., 59 ECAB 293 (2008).

15

R.C., Docket No. 09-2328 (issued July 12, 2010).

4

Thus, the Board finds that OWCP properly suspended entitlement to compensation in
accordance with 5 U.S.C. § 8123 until the date on which appellant agrees to attend the
examination. When appellant actually reports for examination, payment retroactive to the date
on which she agreed to attend the examination may be made.16
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective May 28, 2013 for failure to attend a medical examination.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2013
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

16

C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008).

5