United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
Augusta, GA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0051
Issued: March 23, 2018

Case Submitted on the Record

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

JURISDICTION
On October 6, 2017 appellant, through counsel, filed a timely appeal from a July 11, 2017
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 her burden of proof to establish an occupational
disease due to factors of her federal employment.
FACTUAL HISTORY
On June 24, 2016 appellant, then a 56-year-old nurse, filed an occupational disease claim
(Form CA-2) alleging that she sustained finger, hand, and wrist conditions, which resulted in her
inability to normally move those body parts.3 She asserted that 99.9 percent of her workday (8 to
12 hours per day) required rapid hand/finger movement using a mouse and keyboard.4 Appellant
indicated that she first became aware of her claimed condition on February 28, 2014 and first
realized on November 10, 2014 that it was caused or aggravated by factors of her federal
employment. She did not stop work.
In a July 7, 2016 development letter, OWCP requested that appellant submit additional
evidence, in support of her claim, including a physician’s opinion supported by a medical
explanation explaining how the alleged employment factors caused or aggravated a medical
condition. It requested that she complete and return an attached development questionnaire which
posed various questions regarding the employment factors that she believed caused or aggravated
her claimed condition. On July 7, 2016 OWCP also requested additional information from the
employing establishment.
In an undated statement received on August 5, 2016, appellant responded to OWCP’s
July 7, 2016 development letter and provided additional discussion of her work duties in the
various positions she has held at the employing establishment since 1981. She indicated that in
late 2004 she was granted permission to work two night shifts per week with each shift lasting 12
hours. Appellant noted that she began working as an admission/discharge nurse in 2009 and then
started having upper extremity symptoms. She discussed the diagnostic testing she underwent in
2011 which confirmed bilateral carpal tunnel syndrome and noted that she associated her increased
upper extremity symptoms with her increased use of a computer at work. Appellant discussed her
attempts to obtain adaptive computer equipment and described the course of her medical treatment.
Appellant submitted various documents, mostly from January 2016, regarding her attempts
to obtain adaptive computer equipment and other work accommodations. Some of the documents
were signed by Dr. Benton A. Emblom, an attending Board-certified orthopedic surgeon.5
Appellant also submitted various other documents in support of her claim. The findings of
July 26, 2011 electromyogram (EMG) and nerve conduction velocity (NCV) testing contained an
3

Appellant noted that she had pain, redness, and swelling in her hands and wrists.

4
Appellant claimed that the equipment she used at work was “ergonomically challenged.” She indicated that her
pain symptoms only occurred at work and that she experienced very little pain when she used a computer at home.
Appellant attributed her experiencing very little pain at home to the adaptive computer equipment she used there.
5
The record also contains two undated statements in which appellant further discussed her work history. It is
unclear from the record when these documents were produced or for what purpose they were produced.

2

impression of bilateral carpal tunnel syndrome. In an October 27, 2015 report, Dr. Emblom
diagnosed bilateral carpal tunnel syndrome and indicated that he would proceed with release
surgery. In an October 28, 2015 report, he discussed his performance of bilateral mini open carpal
tunnel release on that date. In a November 5, 2015 report, Dr. Emblom detailed appellant’s followup care and, in a November 23, 2015 report, he provided work restrictions.
In an August 5, 2016 letter, the employing establishment controverted appellant’s claim
for a work-related occupational disease by arguing that she had not submitted medical evidence
sufficient to establish such a condition.
In a September 23, 2016 decision, OWCP denied appellant’s claim for work-related
occupational disease of her upper extremities. It found that she had established that the
employment factors occurred as alleged (including repetitive upper extremity motion), that a
medical condition has been diagnosed, and that she was within the performance of duty. However,
OWCP further found that appellant’s claim was denied because she failed to submit medical
evidence sufficient to establish a diagnosed medical condition causally related to the accepted
employment factors.
Appellant, through counsel, requested a telephone hearing with a representative of
OWCP’s Branch of Hearings and Review.
During the hearing, held on May 8, 2017, appellant testified that she began working for the
employing establishment in 1981 and changed to working on a part-time basis in 2005 (24 hours
per week) due to her restless leg syndrome. She indicated that she continued working on a parttime basis to the present. Appellant provided a discussion of her current upper extremity symptoms
and detailed her medical care.
After the hearing, appellant submitted a May 9, 2017 report in which Dr. Emblom indicated
that she “subjectively” reported that 99.9 percent of her workday she performed near-continuous,
rapid, fast paced, extremely high volume repetitive movements on a work computer and mouse.
She reported that her computer use at work increased beginning in 2006 and that her upper
extremity symptoms began in 2009 with EMG/NCV testing confirming a diagnosis of bilateral
carpal tunnel syndrome in 2011. Appellant also reported continuing to have upper extremity
numbness and weakness with activity for the last six months despite having splints on her wrists.
She noted that she had minimal pain and she localized all of the numbness and tingling in her
palms around the course of the median nerve distribution. Dr. Emblom noted that, upon physical
examination, appellant exhibited positive Tinel’s and Phalen’s signs. He indicated that appellant
possibly had relative atrophy of her thenar musculature on both sides and that x-rays of both wrists
showed normal findings without arthritic changes. Dr. Emblom diagnosed symptomatic carpal
tunnel syndrome of both wrists over the past four years despite conservative treatment. He noted,
“In my medical opinion, the facts of injury are the direct and proximate cause of the diagnosis that
I cited above. This is based on reasonable medical probability. There may be other causes for this
medical problem, but one of the causes is clearly the activities of work described by the patient
and described above.”
By decision dated July 11, 2017, OWCP’s hearing representative affirmed OWCP’s
September 23, 2016 decision. She determined that appellant failed to submit medical evidence

3

sufficient to establish causal relationship of a diagnosed upper extremity condition to the accepted
employment factors. The hearing representative found that Dr. Emblom’s May 9, 2017 report
lacked probative value with respect to appellant’s claim for a work-related upper extremity
condition because the report did not contain medical rationale in support of his opinion on causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the 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.7 To establish fact of injury, an employee must submit evidence
sufficient to establish that he or she experienced a specific event, incident, or exposure occurring
at the time, place, and in the manner alleged.8 An employee must also establish that such event,
incident, or exposure caused an injury.9 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.10
OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.11 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
an employee must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.12
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.13 The opinion of the physician must be based on a complete factual
6

Supra note 2.

7

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

8

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

9

Id.

10

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

11

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims,
Chapter 2.800.2b (June 2011).
12
D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41
ECAB 345 (1989).
13

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

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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 the established employment factors.14
ANALYSIS
Appellant claimed that she sustained an upper extremity condition due to performing
repetitive work duties, including rapid hand/finger movement, using a mouse and keyboard. In
decisions dated September 23, 2016 and July 11, 2017, OWCP denied appellant’s claim noting
that, although she established employment factors as alleged, she failed to submit medical evidence
sufficient to establish a diagnosed medical condition causally related to the accepted employment
factors.
The Board finds that appellant has not met her burden of proof to establish an occupational
disease due to factors of her federal employment.
In a May 9, 2017 report, Dr. Emblom indicated that appellant “subjectively” reported that
99.9 percent of her workday she performed near-continuous, rapid, fast paced, extremely high
volume repetitive movements on a work computer and mouse. Appellant reported that her upper
extremity symptoms began in 2009 with EMG/NCV testing confirming a diagnosis of bilateral
carpal tunnel syndrome in 2011. Dr. Emblom noted that, upon physical examination, appellant
exhibited positive Tinel’s and Phalen’s signs. He diagnosed symptomatic carpal tunnel syndrome
of both wrists over the past four years despite conservative treatment. Dr. Emblom noted, “In my
medical opinion, the facts of injury are the direct and proximate cause of the diagnosis that I cited
above. This is based on reasonable medical probability. There may be other causes for this
medical problem, but one of the causes is clearly the activities of work described by the patient
and described above.”
The Board finds that Dr. Emblom’s May 9, 2017 report is insufficient to establish
appellant’s claim because the report does not contain adequate medical rationale in support of its
opinion on causal relationship. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how an
employment activity could have caused or aggravated a medical condition.15 Dr. Emblom did not
discuss the accepted employment factors in any significant detail or explain how they could have
been competent to cause appellant to develop bilateral carpal tunnel syndrome. He generally
mentioned appellant’s use of a work computer and mouse, but he did not specify the extent to
which appellant performed different work tasks during specific periods. Dr. Emblom did not
provide a detailed discussion of the specific findings on physical examination and diagnostic
testing which would further explain his opinion that appellant’s bilateral carpal tunnel syndrome
was related to employment factors. In rendering his opinion on causal relationship, he introduced
an equivocal aspect to his opinion by noting that there might “be other causes for this medical
problem.” The Board has held that an opinion which is equivocal or speculative in nature is of

14

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

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limited probative value regarding the issue of causal relationship.16 In the absence of further
explanation, Dr. Emblom has provided a mere conclusory opinion without the necessary rationale
explaining how and why the employment factors were sufficient to result in the diagnosed medical
condition. The Board has found that such an opinion is insufficient to meet a claimant’s burden of
proof to establish a claim.17
Appellant did not submit any other medical evidence which addressed the cause of her upper
extremity condition. For the above-noted reasons, she failed to establish a work-related occupational
disease of her upper extremities.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an occupational
disease due to factors of her federal employment.

16

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

17

J.D., Docket No. 14-2061 (issued February 27, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the July 11, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL MEDICAL CENTER
BUTNER, Butner, NC, Employer
__________________________________________

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

Docket No. 16-0312
Issued: June 22, 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 December 8, 2015 appellant filed a timely appeal from an October 27, 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 501.3,2 the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty, causally related to factors of her federal employment.
On appeal, appellant asserts that the evidence of record establishes her claim and
maintains that she has submitted supportive medical evidence to OWCP.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence with her appeal to the Board. The Board, however, cannot
consider this evidence as its jurisdiction is limited to the evidence that was before OWCP at the time it issued its
final decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On September 4, 2014 appellant, then a 30-year-old nursing assistant, filed an
occupational disease claim (Form CA-2) stating that events at work caused severe emotional
distress that affected her entire body. She indicated that she first became aware of the condition
and its relation to her employment on August 31, 2014, and she stopped work on
September 2, 2014. In support of her claim appellant submitted a Family and Medical Leave Act
(FMLA) request, in which Dr. Mohammed S. Khader, a Board-certified family physician,
diagnosed depression, anxiety, and stress from work. He advised that she could not perform her
regular job duties due to severe emotional distress. Dr. Khader estimated that appellant would be
unable to work for two months.
In a letter dated September 18, 2014, OWCP informed appellant of the evidence needed
to establish her claim and afforded her 30 days to submit additional evidence. By separate letter
dated September 18, 2014, it requested additional information from the employing establishment.
In two undated statements, appellant alleged that her emotional condition was caused by
racial discrimination, bullying, harassment in the form of a schedule change, not receiving her
scheduling, involuntary reassignment, lack of communication with management, and her
placement on harder units in retaliation. She also asserted that, time and attendance records were
inaccurate, she had overwhelming job duties, she was unable to bid for permanent positions, and
she was denied promotions. Further, appellant alleged that her schedule was not electronically
posted and that she was closely observed by management. She stated that she had been retaliated
against because she filed two Equal Employment Opportunity (EEO) claims, was bullied at a
staff meeting about her job performance, and harassed and treated differently than other staff
members. Appellant alleged that she was assigned to more difficult units that required heavy
work and at times had to work two units, and that on September 1 and 2, 2014 she had panic
attacks while thinking about work difficulties. She also related that she had crying spells,
lethargy, body aches, stomach problems, headaches, mood swings, lack of interest in activities
and self-care, insomnia, exhaustion, lack of motivation, depression, frequent crying, and stress,
in addition to panic attacks. Appellant described perceived disparate treatment when she was
assigned harder jobs on harder units than other nursing assistants. She indicated that staff would
laugh at her and talk about her, that her job performance was downgraded, and that she felt
singled out because she was Caucasian when most of the staff was African-American. Appellant
added that she was previously treated for depression in 2007-08 because her parents had
separated and because she had broken up with her fiancé. She also advised that her home was
broken into on August 15, 2014, but nothing was stolen.
Appellant submitted a December 6, 2013 letter of acknowledgement that an EEO claim
was accepted for investigation. This was regarding her allegations of improper assignment,
being ridiculed, and a downgraded performance evaluation. In a June 10, 2014 memorandum
regarding her EEO claim, appellant alleged that she was retaliated against for filing a claim by
being placed on more difficult units, schedule changes, inaccurate leave and pay, and being
overworked. A June 11, 2014 union memorandum, addressed to the employing establishment,
maintained that her schedule was improperly changed. An August 27, 2014 letter acknowledged
that an EEO claim was accepted for investigation regarding ongoing harassment in the form of
schedule change, involuntary reassignment, denied schedule request, lack of communication,

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inaccurate time and attendance records, prohibited access to electronic file, and for not being
compensated for work performed.
By decision dated November 3, 2014, OWCP denied the claim. It found that appellant
established no compensable factors of employment and had submitted no medical evidence
which diagnosed a medical condition due to the claimed employment factors.
Appellant timely requested a hearing, which was held on July 13, 2015. She testified that
she had to work harder than other employees, noting that she would be assigned to two units, had
to work seven days in a row, would be called to work while on break, and was not given a
regular work assignment although less senior nursing assistants were. Appellant maintained that
she was improperly written up as absent-without-leave and was denied FMLA leave and leave
bank leave. She stated that she felt racially discriminated against by six African-Americans who
sat around and talked about her and who degraded her at a meeting when she was the only
Caucasian present. Appellant asserted that she was harassed and treated differently than other
employees. She noted that she had filed two EEO complaints, but no final decision had been
issued. Appellant indicated that she had returned to a modified assignment and was diagnosed
with mild depression and anxiety. Daniel Spillman, a Caucasian correctional officer at the
employing establishment, also testified. He stated that he saw appellant when she was very upset
about work and had personally seen lists of work chores for her. Appellant’s mother also
testified that appellant was very upset and depressed. Appellant asserted that she had submitted
a lot of medical evidence that was not of record.
After the hearing, appellant submitted a signed affidavit from Mr. Spillman, taken on
February 14, 2014 for an EEO claim. Mr. Spillman related that he had been a nursing assistant
until January 2014. He acknowledged that he had discussed appellant’s EEO claim with her, but
that he was not present when she claimed she was ridiculed in a staff meeting. Mr. Spillman
indicated that his shift would change and that on occasion he covered two units during a night.
He maintained that it seemed as if he and appellant were moved more frequently than others,
perhaps based on their race, and on one occasion witnessed appellant being moved to another
unit. Mr. Spillman concluded that it appeared that African-American nursing assistants were
given assignments on the easier units.
In a signed affidavit taken on March 5, 2014 for an EEO claim, Candice Toy, a
Caucasian registered nurse at the employing establishment and a union representative, related
that she did not work directly with appellant, but had in the past. She indicated that appellant
told her she was being ganged up on, especially in a meeting with no union representative, and
that she herself had been discriminated against because of race. Ms. Toy explained that nursing
assistants were supposed to rotate equally and voiced her belief that a nurse manager did not
fairly treat Caucasians. She indicated that she was not present at the meeting where appellant
claimed she was ridiculed.
Edwin Kirton, an African-American correctional officer at the employing establishment
and union vice president, provided a signed affidavit taken on October 20, 2014 for an EEO
claim. He related that it would not surprise him that appellant was retaliated against because of
EEO activity because a pattern existed at the employing establishment. Mr. Kirton advised that
she filed a complaint with the union that her schedule was not electronically posted, and that he
assumed this was corrected. He indicated that the union and the employing establishment were
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negotiating to have all nursing assistant assignments converted to bid posts, but this had not been
done yet, and he considered this offensive conduct. Mr. Kirton acknowledged that appellant
appeared to be under a lot of stress, that she had reported harassment, that others had filed
similar charges against employing establishment nurses, and that the employing establishment
retaliated when an EEO claim complaint was filed, such as with appellant. He also
acknowledged awareness of her complaint that she had to work long shifts consecutively.
Mr. Kirton related that appellant had a prior accepted claim and management would not give her
time off for medical appointments. He stated that a number of employees had problems with
getting proper pay and that a grievance had been filed.
In a signed affidavit taken on November 7, 2014 for an EEO claim, Cheryl Daniel, an
employing establishment health systems specialist and union vice president, related that she had
dealt with appellant both with the union and the employing establishment regarding EEO claims.
She concurred that appellant was retaliated against for EEO activity and that appellant was
placed on units that required a heavier workload. Ms. Daniel indicated that appellant had a
previous workers’ compensation claim and that when she returned to work she was retaliated
against and treated offensively. She acknowledged that appellant sought union assistance
regarding being humiliated at a meeting, and that the union was actively engaged in trying to
resolve issues regarding bid positions and regarding incorrect pay of appellant and other
employees. Ms. Daniel concluded that she believed that appellant was harassed and treated in an
offensive manner by employing establishment management.
Appellant also submitted one page of employing establishment policy stating that an
employee “may” be eligible for FECA benefits for employment-related stress.
By decision dated October 27, 2015, an OWCP hearing representative found no
compensable factors of employment and affirmed the November 3, 2014 decision. The hearing
representative noted that appellant did not meet her burden of proof to establish that she was
overworked, had not established error or abuse with regard to administrative matters such as
assignment of work, and that the affidavits submitted did not establish harassment, or
discrimination under FECA.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
3

28 ECAB 125 (1976).

4

See Robert W. Johns, 51 ECAB 137 (1999).

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by the employing establishment or by the nature of the work.5 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.6 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.7 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.9 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.10
To establish a claim that he or she sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing an emotional or
stress-related disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
stress-related condition.11 If a claimant does implicate a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor.12 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the Equal Employment Opportunity Commission, which is charged with statutory authority to
5

Supra note 3.

6

J.F., 59 ECAB 331 (2008).

7

M.D., 59 ECAB 211 (2007).

8

Roger Williams, 52 ECAB 468 (2001).

9

Charles D. Edwards, 55 ECAB 258 (2004).

10

Kim Nguyen, 53 ECAB 127 (2001).

11

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

12

Dennis J. Balogh, 52 ECAB 232 (2001).

13

Id.

14

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

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investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under FECA, the term “harassment” is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or coworkers.
Mere perceptions and feelings of harassment will not support an award of compensation.15
ANALYSIS
The Board finds that appellant has not established an employment-related emotional
condition in the performance of duty. She has not established a compensable factor of
employment.
As to appellant’s allegation that she was overworked because she would be assigned two
harder units, and had to work seven days in a row, the Board has held that overwork, when
substantiated by sufficient factual information to corroborate the claimant’s account of events,
may be a compensable factor of employment.16 In this case, however, appellant submitted no
evidence to substantiate these allegations, such as earnings and leave statements, a daily work
roster, or statements from other employees confirming disparate scheduling and assignments. As
with all allegations, overwork must be established on a factual basis to be a compensable
employment factor.17 Because appellant has not submitted any evidence corroborating this,
overwork cannot be deemed compensable factors of employment.
Appellant also alleged that her emotional condition was caused by a schedule change, not
receiving her scheduling, involuntary reassignment, inaccurate time and attendance records, not
being able to bid for permanent positions, not being promoted, that her schedule was not
electronically posted and that she was closely observed by management. As a general rule, a
claimant’s reaction to administrative or personnel matters falls outside the scope of FECA.18
The Board has long held that disputes regarding leave,19 the assignment of work,20 assessment of
work performance,21 denial of a promotion,22 and a change in a duty shift,23 are administrative
functions of the employing establishment and, absent error or abuse, are not compensable.24
Appellant submitted no evidence sufficient to establish the alleged instances of error or abuse.

15

Beverly R. Jones, 55 ECAB 411 (2004).

16

Bobbie D. Daly, 53 ECAB 691 (2002).

17

Sherry L. McFall, 51 ECAB 436 (2000).

18

Carolyn S. Philpott, 51 ECAB 175 (1999).

19

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

20

Robert W. Johns, 51 ECAB 137 (1999).

21

Elizabeth W. Esnil, 46 ECAB 606 (1995).

22

Martha I. Watson, 46 ECAB 407 (1995).

23

Peggy R. Lee, 46 ECAB 527 (1995).

24

Supra note 9

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Absent evidence establishing error or abuse, her dislike of these managerial actions is not a
compensable factor of employment.25
Appellant also alleged that employing establishment management treated her
disrespectfully. Generally, complaints about the manner in which a supervisor performs his or
her duties or the manner in which a supervisor exercises his or her discretion fall, as a rule,
outside the scope of coverage provided by FECA. This principle recognizes that a supervisor or
manager, in general, must be allowed to perform his or her duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action
will not be compensable, absent evidence of error or abuse.26 Here again, the record contains no
evidence that any employing establishment supervisor or manager treated appellant in a
disrespectful manner at a particular time and place. Error or abuse in discharging management
duties has not been established, and this allegation is therefore not compensable.27
Appellant contended that she was harassed and bullied at work by supervisors and
coworkers who talked about her and treated her in a disrespectful, discriminatory manner. Mere
perceptions of harassment or discrimination are not compensable under FECA,28 and
unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.29 Although appellant indicated that she had
filed EEO complaints, the record does not contain an EEO decision making findings about
particular assertions that are at issue in her workers’ compensation claim. Although she
submitted several affidavits from coworkers and union officials, these statements alone are
insufficient to meet appellant’s burden of proof. While each of the affidavits generally supported
appellant’s contentions, none provided specific dates or described situations with sufficient
degree of specificity. Appellant, thus, submitted insufficient evidence to show a persistent
disturbance, torment, or persecution, i.e., mistreatment by employing establishment
management.30 She therefore did not establish a factual basis for her claim of harassment by
probative and reliable evidence.31
Thus, contrary to appellant’s assertions on appeal, she has not established any
compensable employment factors under FECA and therefore has not met her burden of proof in
establishing an emotional or stress-related condition in the performance of duty. As appellant

25

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

26

Id.

27

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

28

Supra note 14.

29

Id.

30

Supra note 15.

31

See Robert Breeden, 57 ECAB 622 (2006).

7

has not established any compensable employment factors, the Board need not consider the
medical evidence of record.32
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 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

32

See Margaret S. Krzycki, 43 ECAB 496 (1992). As to appellant’s assertion on appeal that she submitted
medical evidence to OWCP, it is not found in the record before the Board.

8


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

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

Docket No. 18-0395
Issued: July 17, 2018

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 December 18, 2017 appellant filed a timely appeal from a June 21, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from OWCP’s most recent merit decision dated April 5, 2016, 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.
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).

1
Appellant timely requested oral argument pursuant to 20 C.F.R. § 501.5(b). By order dated May 16, 2018, the
Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 18-0395 (issued
May 16, 2018).
2

5 U.S.C. § 8101 et seq.

On appeal appellant asserts that his occupational disease claim should be accepted.
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 November 26, 2012 appellant, then a 58-year-old mail processing clerk,4 filed an
occupational disease claim (Form CA-2) alleging that his federal employment duties of feeding
and sweeping mail at a delivery bar code sorter caused low back pain.
By decision dated March 5, 2013, OWCP found that the medical evidence submitted was
insufficient to establish causal relationship between the claimed back condition and the accepted
factors of appellant’s federal employment.
On April 1, 2013 appellant timely requested a hearing before an OWCP hearing
representative.5 By decision dated November 27, 2013, OWCP’s hearing representative affirmed
the denial of the claim. He found the medical evidence submitted insufficient to establish causal
relationship in the claim.
Appellant, through his then counsel, requested reconsideration on May 8, 2014. By
decision dated August 6, 2014, OWCP reviewed the merits of his claim, but denied modification,
finding that the medical evidence submitted was insufficient to establish causal relationship.
Appellant, through his then counsel, again requested reconsideration on August 29, 2014.
He submitted a March 17, 2014 report from Dr. Robert Blake, appellant’s attending chiropractor,
who noted his review of a “12-2-201” [sic] lumbar spine x-ray.6 Dr. Blake diagnosed lumbar disc
dissection, subluxation L5, lumbar myalgia, lumbar disc degeneration, left S1 subluxation, and S1
sprain/strain. In a report dated September 11, 2014, he again diagnosed lumbar subluxations.
On October 7, 2014 OWCP referred the case record to Dr. Leonard Kaufman, a Boardcertified radiologist, for a second opinion as to whether the December 23, 2012 x-rays showed a
subluxation. In a report dated October 21, 2014, Dr. Kaufman indicated that he had reviewed the
December 22, 2012 emergency room report, December 23, 2012 x-rays, a May 29, 2013 MRI

3

Docket No. 15-0381 (issued April 3, 2015).

4

The record indicates that appellant also worked part time as a chiropractor.

5

At that time appellant obtained representation from Stephen J. Dunn, Esq.

6

The record includes an emergency department report noting that appellant was seen on December 22 and 23, 2012
where a lumbar spine x-ray was interpreted as showing spondylosis and S1 degenerative changes. An x-ray dated
December 23, 2012, demonstrated lower thoracic and lower lumbar spondylosis, and mild S1 joint degenerative
changes. A May 29, 2013 magnetic resonance imaging (MRI) scan demonstrated mild multilevel degenerative
changes and moderate foraminal stenosis at L5-S1.

2

scan, and reports from Dr. Blake.
subluxation.7

He opined that there was no radiographic evidence of

By decision dated November 13, 2014, OWCP reviewed the case on its merits, but found
the evidence of record insufficient to warrant modification.
On December 10, 2014 appellant, through counsel, appealed to the Board. By decision
dated April 3, 2015, the Board affirmed OWCP’s November 13, 2014 decision, finding that
appellant had not established a back injury causally related to the accepted factors of his federal
employment. The Board found that Dr. Blake, a chiropractor, was not considered a physician
under FECA, noting that he merely reviewed x-rays taken elsewhere, and that the record contained
no rationalized medical opinion evidence sufficient to establish causal relationship between the
claimed condition and appellant’s job duties.8
On January 21, 2016 appellant, through counsel, requested reconsideration and submitted
additional evidence. By decision dated April 5, 2016, OWCP reviewed the merits of appellant’s
claim, but denied modification.9
On April 4, 2017 appellant requested reconsideration.10 He submitted evidence previously
of record,11 excerpts from previous requests for reconsideration, information regarding his lightduty work and Equal Employment Opportunity Commission claim, correspondence from him to
the employing establishment, a duty status report (Form CA-17) dated November 26, 2012 with
an illegible signature, and publications copied from the internet. A December 9, 2013 employing
establishment light-duty work status report signed by Dr. Vagomir P. Vora, an orthopedic surgeon,
indicated that appellant could perform light-duty work per a November 29, 2013 FCE.12 In
attached statements, appellant briefly described the history of his claim and included references to
OWCP procedures and indicated that he was submitting medical evidence from Dr. David Smith,
a chiropractor. No additional evidence was received.
By decision dated June 21, 2017, OWCP denied appellant’s April 4, 2017 request for
reconsideration of the merits of his claim. It found the evidence submitted irrelevant or immaterial
and of no bearing on the issue of whether his claimed condition was causally related to factors of
his federal employment.

7

In October 2014, appellant obtained representation from Alan J. Shapiro, Esq.

8

Supra note 3.

OWCP’s April 5, 2016 decision noted that it denied modification of the Board’s April 3, 2015 decision. OWCP
is not authorized to review Board decisions. Although the April 3, 2015 decision was the last merit decision, the
November 13, 2014 OWCP decision is the appropriate subject of possible modification by OWCP.
9

10

Appellant indicated that he was no longer represented by Mr. Shapiro and was appearing pro se.

11

This consisted of a functional capacity evaluation (FCE) dated November 29, 2013 and the December 23, 2012
x-ray report.
12

The work capacity evaluation had been submitted previously.

3

LEGAL PRECEDENT
Under section 8128(a) of FECA,13 OWCP has the discretion to reopen a case for review on
the merits. It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits of his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”14
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.15
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).
On reconsideration appellant asserted that his claim should have been accepted. His
assertion did not show that OWCP erroneously applied or interpreted a specific point of law or
advance a relevant legal argument not previously considered. Thus, appellant is not entitled to a
review of the merits of the claim based on the first and second above-noted requirements under
section 10.606(b)(3).16
The Board also finds that appellant did not submit relevant and pertinent new evidence in
support of his reconsideration request. The underlying issue in this case is whether appellant’s
employment duties caused a back condition. As the issue is medical in nature, it can only be
resolved through the submission of medical evidence.17 In his request to OWCP, appellant
indicated that he was submitting reports from Dr. Smith, a chiropractor. These reports, however,
are not in the record before the Board.

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.608(b).

16

Supra note 14; see R.M., 59 ECAB 690 (2008).

17

Y.S., Docket No. 08-0440 (issued March 16, 2009).

4

Medical evidence submitted included an FCE report which had previously been submitted.
The Board has held that newly submitted evidence which is only repetitive or duplicative of
evidence existing in the record is insufficient to warrant further merit review.18 A November 26,
2012 duty status report (Form CA-17) contains an illegible signature. As the author of this
document cannot be identified as a physician, it does not constitute competent medical evidence
and is insufficient to reopen the case for further merit review.19 OWCP also received an employing
establishment light-duty work status report signed by Dr. Vora, however, it did not contain a
diagnosis or any opinion on causal relationship and merely indicates that appellant should perform
light work in accordance with the FCE. As this report did not address the underlying issue of
causal relationship, it did not constitute relevant and pertinent new medical evidence.20
Because appellant did not provide OWCP with any relevant and pertinent new evidence,
he is not entitled to a review of the merits based on the third requirement under section
10.606(b)(3).21
As appellant did not show that OWCP erred in applying a point of law, advance a relevant
legal argument not previously considered, or submit relevant and pertinent new evidence not
previously considered by OWCP, OWCP properly denied his reconsideration request.22
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).

18

See A.H., Docket No. 17-0652 (issued April 25, 2018).

19

See M.R., Docket No. 14-1836 (issued February 3, 2015).

20

See B.B., Docket No. 17-0769 (issued December 14, 2017).

21

20 C.F.R. § 10.606(b)(3)(iii); see D.P., Docket No. 17-0290 (issued May 14, 2018).

22

M.A., Docket No. 16-1846 (issued October 20, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 17, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Q., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 07-788
Issued: July 5, 2007

Case Submitted on the Record

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

JURISDICTION
On January 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 28, 2006 merit decision granting a schedule award for a hearing
loss and the Office’s June 2, 2006 nonmerit decision denying his request for a hearing before an
Office hearing representative. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over these decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has more
than an eight percent hearing loss in his left ear, for which he received a schedule award; and
(2) whether the Office properly denied appellant’s request for a hearing under section 8124 of the
Federal Employees’ Compensation Act.
FACTUAL HISTORY
On October 28, 2005 appellant, then a 58-year-old metal tube manufacture, installation
and repair supervisor, filed an occupational disease claim alleging that he sustained hearing loss

due to exposure to hazardous noise at work. He claimed that since 1981 he had been exposed to
noise from pipe cutting saws, pressure relief valves, fork lifts, hammers, rivet guns, sanders and
other electric tools.
The Office referred appellant for otologic and audiologic testing to Dr. James M. Motes,
a Board-certified otolaryngologist, who completed testing on December 2, 2005 which showed
that appellant sustained a high-frequency noise-induced hearing loss that was related, in whole or
part, to his noise exposure during federal employment. Dr. Motes noted that testing for the left
ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel
losses of 25, 25, 30 and 40 respectively and that testing for the right ear at the frequency levels of
500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 20, 20, 25 and 35
respectively. He calculated that appellant had an eight percent hearing loss in his left ear.1
On December 20, 2005 the Office accepted that appellant sustained bilateral noiseinduced hearing loss. On January 4, 2006 the Office medical adviser reviewed the otologic and
audiologic testing performed on December 2, 2005 by Dr. Motes and agreed that, under the
standards of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001), appellant had an eight percent hearing loss in his
left ear.
On December 28, 2005 appellant claimed a schedule award due to his hearing loss. In an
award of compensation dated March 28, 2006, the Office granted appellant a schedule award for
an eight percent hearing loss of his left ear. The award ran for 4.16 weeks from December 1
to 30, 2005.2
In a letter dated May 12, 2006 and postmarked May 13, 2006, appellant requested a hearing
before an Office hearing representative.
In a June 2, 2006 decision, the Office denied appellant’s request for a hearing under section
8124 of the Act. The Office found that appellant’s request was untimely as it was effectuated more
than 30 days after the issuance of the Office’s March 28, 2006 decision. It indicated that it had
considered the matter in relation to the issue involved and had denied appellant’s hearing request
on the basis that the issue in the case could be resolved by submitting additional medical
evidence to establish that he was entitled to greater schedule award compensation for hearing
loss.

1

Dr. Motes stated that appellant’s “audiograms were not consistent with the previous findings on October 5,
2005” as the speech reception thresholds and pure tones did not match. He indicated that appellant was “brought
back in on December 2, 2005 and the audio was repeated” and noted that the results of the December 2, 2005 testing
“matched almost perfectly” the results of the October 5, 2005 testing.
2

The Office inadvertently indicated that the award ran for 29.12 weeks rather than 4.16 weeks.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act3 and its implementing regulation4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, 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 regulation as the
appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.7 Then, the “fence” of 25 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.8 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in the
Office’s adoption of this standard for evaluating hearing loss.11 One audiogram may not be
arbitrarily chosen over another to evaluate hearing loss, but an explanation must be given as to why
a particular audiogram is selected.12
ANALYSIS -- ISSUE 1
On January 4, 2006 the Office medical adviser reviewed the otologic and audiologic
testing performed on December 1, 2005 by Dr. Motes, a Board-certified otolaryngologist. He
applied the Office’s standardized procedures to this evaluation. Testing for the left ear at the
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

A.M.A., Guides 224-25 (4th ed. 1993); A.M.A., Guides at 226-51 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

See Herman L. Henson, 40 ECAB 341, 347 (1988); Harry Frank, 33 ECAB 261, 263 (1981).

3

frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 25,
25, 30 and 40 respectively. These decibel losses were totaled at 120 decibels and were divided
by 4 to obtain the average hearing loss of 30 decibels. This average loss was then reduced by
25 decibels (25 decibels being discounted as discussed above) to equal 5 which was multiplied
by the established factor of 1.5 to equal 7.5 which, when rounded up, equaled an 8 percent
hearing loss in the left ear. Testing for the right ear at the frequency levels of 500, 1,000, 2,000
and 3,000 cycles per second revealed decibel losses of 20, 20, 25 and 35 respectively. These
decibel losses total 100 decibels and when divided by 4 result in an average hearing loss of
25 decibels. This average loss when reduced by 25 decibels (25 decibels being discounted as
discussed above) equals 0 and, therefore, it was determined that appellant had a 0 percent
hearing in the right ear.
On appeal, appellant alleged that Dr. Motes initially obtained audiometric testing which
showed severe hearing loss in both ears, but that the next day he obtained audiometric testing
which showed only moderate damage to the left ear. He suggested that Dr. Motes’ use of the
second test to assess the extent of his hearing loss was not justified. The Board notes, however,
that Dr. Motes explained that the first audiometric testing he obtained was invalid because the
speech reception thresholds and pure tones did not match previous testing obtained in
October 2005. He had appellant retested on December 2, 2005 and found that the results of this
audiometric testing “matched almost perfectly” the results of the October 5, 2005 testing.13
Therefore, Dr. Motes adequately explained why it was appropriate to use the December 2, 2005
audiogram in rating appellant’s hearing loss. Appellant did not meet his burden of proof to
establish that he has more than an eight percent hearing loss in his left ear, for which he received a
schedule award.14
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”15 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made within the requisite 30 days.16
The Board has held that the Office, in its broad discretionary authority in the administration
of the Act, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that the Office must exercise this discretionary authority in deciding
13

The Board notes that the only audiogram of record is the December 2, 2005 audiogram.

14

Moreover, appellant appropriately received 4.16 weeks of schedule award compensation as this figure equals
the product of eight percent times 52 weeks, the number of weeks of compensation for total hearing loss in one ear.
See 5 U.S.C. § 8107(c)(13)(A), 5 U.S.C. § 8107(c)(19).
15

5 U.S.C. § 8124(b)(1).

16

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

4

whether to grant a hearing.17 Specifically, the Board has held that the Office has the discretion to
grant or deny a hearing request on a claim involving an injury sustained prior to the enactment of
the 1966 amendments to the Act which provided the right to a hearing,18 when the request is made
after the 30-day period for requesting a hearing19 and when the request is for a second hearing on
the same issue.20
ANALYSIS -- ISSUE 2
Appellant’s hearing request was made more than 30 days after the date of issuance of the
Office’s prior decision dated March 28, 2006 and, thus, he was not entitled to a hearing as a matter
of right. He requested a hearing before an Office hearing representative in a document dated
May 12, 2006 and postmarked May 13, 2006. The Office properly found that appellant was not
entitled to a hearing as a matter of right because his May 13, 2006 hearing request was not made
within 30 days of the Office’s March 28, 2006 decision.
While the Office also has the discretionary power to grant a hearing when a claimant is
not entitled to a hearing as a matter of right, the Office, in its June 2, 2006 decision, properly
exercised its discretion by stating that it had considered the matter in relation to the issue
involved and had denied appellant’s hearing request on the basis that the issue in the case could
be resolved by submitting additional medical evidence to establish that he was entitled to greater
schedule award compensation for hearing loss. The Board has held that, as the only limitation on
the Office’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
both logic and probable deduction from established facts.21 In the present case, the evidence of
record does not indicate that the Office committed any act in connection with its denial of
appellant’s hearing request which could be found to be an abuse of discretion. For these reasons,
the Office properly denied appellant’s request for a hearing under section 8124 of the Act.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than an eight percent hearing loss in his left ear, for which he received a schedule award.
The Board further finds that the Office properly denied appellant’s request for a hearing under
section 8124 of the Act.

17

Henry Moreno, 39 ECAB 475, 482 (1988).

18

Rudolph Bermann, 26 ECAB 354, 360 (1975).

19

Herbert C. Holley, 33 ECAB 140, 142 (1981).

20

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

21

Daniel J. Perea, 42 ECAB 214, 221 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 2 and March 28, 2006 decisions are affirmed.
Issued: July 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J.,
and
DEPARTMENT OF VETERANS AFFAIRS,
ALEDA E. LUTZ VA MEDICAL CENTER,
Saginaw, MI, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1264
Issued: February 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 10, 2020 appellant, through counsel, filed a timely appeal from an April 29, 2020
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 more than two
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On December 19, 2002 appellant, then a 44-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 18, 2002 he injured his right kneecap when
he slipped on ice while in the performance of duty. By decision dated January 21, 2003, OWCP
accepted the claim for right knee sprain.3 Appellant returned to full-time modified-duty work on
February 11, 2003 and full-time regular-duty work on March 5, 2003.4
OWCP thereafter received an October 3, 2017 medical report by Dr. Catherine Watkins
Campbell, Board-certified in occupational medicine. Dr. Watkins Campbell noted a history of the
accepted December 18, 2002 employment injury.5 On physical examination appellant presented
wearing braces bilaterally and ambulated with a mild-to-moderately antalgic gait. On general
examination she found limited ability to squat, negative Trendelenburg sign bilaterally, and no
laxity in the right knee. Dr. Watkins Campbell reported medial joint line tenderness of the right
knee, mild patellar crepitance of the right knee, negative popliteal examination on the right, and
normal strength. On range of motion (ROM) examination of the right knee, she reported three
measurements of appellant’s right knee consisting of 120, 120, and 125 degrees of flexion, and 14, -10, and -9 degrees of extension. She reported that appellant was at maximum medical
improvement (MMI) on August 10, 2017, the date of the examination.
Dr. Watkins Campbell referred to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)6 and utilized the diagnosisbased impairment (DBI) rating method to find that, under Table 16-3 (Knee Regional Grid), page
509, the class of diagnosis (CDX) for a knee strain resulted in a class 1 impairment for “mild
motion deficits” with a default value of seven. Dr. Watkins Campbell assigned a grade modifier
for functional history (GMFH) of 1, at page 516, based on appellant’s gait derangement consistent
with “antalgic limp with asymmetric shortened stance, corrects with footwear modifications and/or
orthotics.” She assigned a grade modifier for physical examination (GMPE) of 1, at page 517,
based on minimal palpatory findings, consistently documented, without observed abnormalities.
She further noted a GMPE of 1 as appellant’s range of motion revealed “mild or arthrodesis in
position of function.” Dr. Watkins Campbell found that a grade modifier for clinical studies
3

Appellant was paid continuation of pay from December 19, 2002 through February 1, 2003.

4

On December 11, 2009 OWCP indicated that there was no activity in the claim since 2003 and it was placed in a
case-closed status. Appellant retired effective November 30, 2015.
5

Dr. Campbell referenced a 2014 work injury in which appellant tripped and fell while assisting a patient and
reinjured his right knee and lower back. She noted having no documentation of the 2002 injury. She rated the right
knee based on the assumption that a recognized injury occurred in 2002 and again in 2014.
6

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

2

(GMCS) was not applicable as the clinical studies were used to establish the diagnosis and proper
placement in the regional grid. She utilized the net adjustment formula (GMFH - CDX) + (GMPE
- CDX) = (1 - 1) + (1 - 1) = 0, which resulted in a grade C or seven percent permanent impairment
of the right lower extremity. Dr. Watkins Campbell did not provide a ROM impairment rating
pursuant to Table 16-23 (Knee Motion Impairments), page 549. She concluded that appellant had
seven percent permanent impairment of the right lower extremity under the DBI rating method.
On June 7, 2019 OWCP routed Dr. Watkins Campbell’s October 3, 2017 report, a
statement of accepted facts (SOAF), and the case file to Dr. Herbert White, Jr., a Board-certified
orthopedic surgeon serving as a district medical adviser (DMA), for review and a determination
of permanent impairment of the right lower extremity in accordance with the sixth edition of the
A.M.A., Guides and the date of maximum medical improvement (MMI).
In a June 12, 2019 report, Dr. White reviewed the medical record, including the report of
Dr. Watkins Campbell. He found that the diagnosis of right knee sprain had been established.
Using the DBI method with reference to appellant’s right knee condition, the DMA found that,
under the sixth edition of the A.M.A., Guides, Table 16-3, page 509, the CDX for a knee strain
resulted in a class 1 impairment for “palpatory findings” with a default value of two. Dr. White
assigned a GMFH of 1 based on appellant’s abnormal gait. He assigned a GMPE of 1 based on
tenderness. Dr. White found that a GMCS was not applicable as the clinical studies were used to
establish the diagnosis and proper placement in the regional grid. He utilized the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) = (1 - 1) + (1 - 1) = 0, which resulted in a grade C or
two percent permanent impairment of the right lower extremity. Dr. White referenced Dr. Watkins
Campbell’s right knee ROM measurements for flexion 120, 120 and 125 degrees and for flexion
contracture -14, -10, and -9 degrees and opined that pursuant to Table 16-23, Knee Motion
Impairments, page 549, these ROM findings were normal. Dr. White addressed the discrepancy
between his rating of two percent impairment and Dr. Watkins Campbell’s rating of seven percent
impairment of the right lower extremity and explained that Dr. Watkins Campbell noted that
appellant had decreased ROM of the right knee; however, upon application of her findings to Table
16-23, ROM was found to be normal. He concurred that the date of MMI was August 10, 2017.
By decision dated November 19, 2019, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity. The period of the award ran for 5.76
weeks for the period August 10 to September 19, 2017, and was based on the opinion of the DMA.
On November 26, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review and submitted a supplemental report
from Dr. Watkins Campbell in which she addressed the discrepancy between her impairment
findings and Dr. White’s. Referencing the A.M.A., Guides, Dr. Watkins Campbell asserted that
Dr. White erroneously applied the use of the stand-alone ROM method, which was permissible for
some diagnoses primarily in the upper extremity ratings. She indicated that there was no asterisk
by the knee strain diagnosis allowing for use of the ROM method. Dr. Watkins Campbell noted
that the examiner was to use the greater of the two values using the DBI method and ROM method.
She reiterated her prior opinion that appellant sustained seven percent impairment of the right
lower extremity.

3

An oral hearing was held on March 11, 2020. By decision dated April 29, 2020 OWCP’s
hearing representative affirmed the November 19, 2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.9 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).10 The Board has approved the
use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of
a member of the body for schedule award purposes.11
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).12 In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.13 After the CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).14 Under Chapter 2.3, evaluators are
directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.15

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
11

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

12
A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.
13

See A.M.A., Guides 509, Table 16-3.

14

Id. at 515-22.

15

Id. at 23-28.

4

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
Appellant submitted an October 3, 2017 report from Dr. Watkins Campbell to support his
claim for a schedule award. Dr. Watkins Campbell reviewed appellant’s history and conducted an
examination. She reported a diagnosis of right knee strain. Utilizing the DBI methodology under
Table 16-3, page 509 of the sixth edition of the A.M.A., Guides, Dr. Watkins Campbell found that
appellant had a class 1, grade C impairment for “mild motion deficits” with a default value of
seven. She assigned grade modifiers and applied the net adjustment formula to find a net
adjustment of 0, which yielded seven percent right lower extremity permanent impairment.
OWCP properly referred the evidence of record to a DMA, Dr. White. In his June 12, 2019
report, the DMA disagreed with Dr. Watkins Campbell’s impairment rating of seven percent
because it was based on the (CDX) for a knee strain, class 1 impairment for “mild motion deficits.”
He correctly explained that Dr. Watkins Campbell provided right knee ROM for flexion of 120,
120 and 125 degrees and for flexion contracture of -14, -10, and -9 degrees. Pursuant to Table 1623, Knee Motion Impairments, these findings were normal and would not be appropriately rated
as “mild motion deficits.” Rather, “palpatory findings” more accurately described appellant’s
condition. The Board has held that, when an attending physician’s report gives an estimate of
permanent impairment, but it is not based on proper application of the A.M.A., Guides, OWCP
may follow the advice of the DMA if he or she has properly applied the A.M.A., Guides.17 In his
June 12, 2019 report, the DMA properly applied the A.M.A., Guides to the physical examination
findings of Dr. Watkins Campbell. He noted that the physical examination of record did not
demonstrate mild motion deficits and correctly noted the CDX resulted in a class 1 impairment
most consistent with “palpatory findings” with a default value of two. The DMA and Dr. Watkins
Campbell both recommended the same grade modifiers and provided a calculation of the net
adjustment formula. The Board finds that the DMA accurately summarized the relevant medical
evidence, provided detailed findings on examination, and reached conclusions about appellant’s
condition which comported with his findings, and with the appropriate provisions of the A.M.A.,

16

See supra note 10 at Chapter 2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12,
2020); Frantz Ghassan, 57 ECAB 349 (2006).
17
See J.D., Docket No. 19-0414 (issued August 19, 2019); P.L., Docket No. 17-0355 (issued June 27, 2018); see
also Ronald J. Pavlik, 33 ECAB 1596 (1982).

5

Guides.18 The DMA’s report therefore carries the weight of the medical evidence and establishes
that appellant has two percent permanent impairment of his right lower extremity.19
On appeal counsel contends that OWCP failed to give due deference to the findings of
appellant’s attending physician. The Board finds that this assertion is not meritorious. As
explained above, appellant has not established greater than two percent permanent impairment of
his right lower extremity.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 16, 2021
Washington, DC

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

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

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

18

See J. M., Docket No. 18-1387 (issued February 1, 2019).

19

See F.T., Docket No. 16-1236 (issued March 12, 2018).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, BEALE
AIR FORCE BASE, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-976
Issued: November 6, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant filed a timely appeal of a January 22, 2009 decision of the
Office of Workers’ Compensation Programs denying his schedule award claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he had a
ratable hearing loss warranting a schedule award.
FACTUAL HISTORY
On September 11, 2008 appellant, then a 54-year-old aircraft mechanic, filed an
occupational disease claim alleging that he developed hearing loss and tinnitus due to working in
a high noise area for 36 years. He first became aware of his hearing loss and related it to his
employment on June 12, 2008. Appellant was last exposed to workplace noise exposure in
September 2008, when he retired.

On September 23, 2008 the Office requested additional evidence. Appellant submitted
several audiograms and hearing conservation data dated April 5, 1972 to June 12, 2008. He also
submitted several statements noting his history of employment and the noise exposure associated
with each job. In an October 2, 2008 statement, appellant noted that he had previously submitted
information on the sources and extent of his workplace noise exposure as well as audiograms.
He used foam earplugs with ear defenders for protection. Appellant noted that on June 12, 2008
he was sent to a hearing referral because he failed three hearing tests in the previous month. He
also noted constant ringing in his ears in addition to his hearing loss. Appellant indicated that
throughout his federal career he was a flight line mechanic.
On October 16, 2008 the Office referred appellant with a statement of accepted facts to
Dr. David Kiener, a Board-certified otolaryngologist, for a second opinion evaluation. In a
November 18, 2008 report, Dr. Kiener reviewed appellant’s history of employment and the noise
exposure at each position. He noted that appellant retired in September 2008. Dr. Kiener
reviewed appellant’s audiometric testing results and found normal speech reception of 10
decibels in the right ear and 5 decibels in the left ear. He found normal word discrimination in
each ear as well as normal acoustic reflexes. Dr. Kiener noted that appellant had been exposed
to considerable noise as a flight line mechanic from 1972 to 2008 whereby he developed tinnitus
and symptoms of hearing loss where people must repeat themselves. He opined that appellant
had mild to moderate neurosensory hearing loss, worst at 4,000 cycles per second and improved
below and above that frequency. Dr. Kiener advised that this condition was regarded as an
acoustic notch, which was consistent with the history of noise exposure. He indicated that with
normal speech reception appellant heard well in most circumstances but could have some trouble
understanding speech in the presence of background noise. Dr. Kiener opined that most people
with this type of hearing loss did not require hearing aids. A November 10, 2008 audiogram
performed on his behalf showed the following decibel losses at frequencies of 500, 1,000, 2,000
and 3,000 cycles per second: 5, 5, 10 and 25 for the right ear and 5, 5, 10 and 35 for the left ear.
In a November 26, 2008 decision, the Office accepted appellant’s claim for bilateral
neurosensory hearing loss. On December 2, 2008 appellant filed a schedule award claim.1 He
resubmitted several audiograms and documents already of record.
On January 2, 2009 an Office medical adviser reviewed Dr. Kiener’s November 18, 2008
report and the audiometric testing. He noted that November 10, 2008, the date of the audiogram
performed for Dr. Kiener, was the date of maximum improvement. The Office medical adviser
applied the Office’s standards for evaluating hearing loss to the audiogram and determined that
appellant had zero percent monaural hearing loss in the right ear and zero percent monaural
hearing loss in the left ear. He noted that hearing aids were not indicated.
In a January 22, 2009 decision, the Office denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable and that the weight
of the medical evidence established that he would not benefit from hearing aids.

1

Appellant had previously filed a schedule award claim on September 11, 2008.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment has been adopted by the Office for evaluating schedule losses and the
Board has concurred in such adoption.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. 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. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.4
ANALYSIS
Appellant submitted a schedule award claim for hearing loss and the Office developed
the claim by referring him to Dr. Kiener. On November 18, 2008 Dr. Kiener examined him and
obtained audiometric testing. He opined that the noise exposure at appellant’s workplace caused
mild to moderate bilateral neurosensory hearing loss. Dr. Kiener advised that appellant did not
require hearing aids.
An Office medical adviser applied the Office’s standard procedures to the November 10,
2008 audiogram. The Office tested decibel losses at 500, 1,000, 2,000 and 3,000 cycles per
seconds and recorded decibel losses of 5, 5, 10 and 25 respectively in the right ear. The total
decibel loss in the right ear is 45 decibels. When divided by 4, the result is an average hearing
loss of 11.25 decibels. The average loss of 11.25 is reduced by the fence of 25 decibels to equal
0, which when multiplied by the established factor of 1.5, resulted in 0 percent impairment of the
right ear. The audiogram tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000
cycles per second and recorded decibel losses of 5, 5, 10 and 35 respectively for a total decibel
2

5 U.S.C. §§ 8101-8193.

3

R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

4

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); Donald Stockstad, 53 ECAB 301 (2002),
petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).

3

loss of 55 decibels. When divided by 4, the result is an average hearing loss of 13.75 decibels.
The average loss of 13.75 decibels is reduced by the fence of 25 decibels to equal 0, which when
multiplied by the established factor of 1.5, resulted in 0 percent impairment of the left ear. The
medical adviser also found that hearing aids were not authorized. The Board finds that he
properly applied the standards to the findings of the November 10, 2008 audiogram and
concluded that appellant did not have a ratable hearing loss for schedule award purposes.
The Board notes that appellant submitted audiograms dated between April 5, 1972 and
June 12, 2008. However, the audiograms of May 7 and June 12, 2008 were not reviewed or
certified by a physician. Therefore, these tests cannot be the basis of an impairment
determination.5 Consequently, the Board finds that the weight of the medical evidence
establishes that appellant has no ratable loss of hearing pursuant to the A.M.A., Guides.
On appeal, appellant asserts that he is entitled to a schedule award as his hearing loss was
accepted as a work-related injury. As noted, however, the Office determined the percentage of
hearing impairment for schedule award purposes under the standards of the A.M.A., Guides. It
properly found that appellant’s hearing loss, while clearly work related, is not sufficient to be
ratable. Appellant also asserts that he is entitled to a schedule award as he has constant ringing
in his ears. While Dr. Kiener found that he had tinnitus, he also found normal word
discrimination. It is for the evaluating physician to integrate any subjective complaints with
objective data to estimate the degree of permanent impairment due to tinnitus. In the absence of
a ratable hearing loss, a schedule award for tinnitus is not appropriate.6 Appellant further asserts
that he is unable to listen to conversations when in crowds. However, the Board has also held
that factors such as limitations on daily activities do not go into the calculation of a schedule
award.7
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he had a
ratable hearing loss entitling him to a schedule award.

5

See Joshua A. Holmes, 42 ECAB 231 (1990) (while the Office should evaluate audiograms from a physician
that are made within about two years of each other and are submitted by more than one specialist, the Office does
not have to review an audiogram which has not been certified by a physician). See also Robert E. Cullison, 55
ECAB 570 (2004). In any event, these uncertified audiograms do not indicate a ratable hearing loss.
6

L.S., 57 ECAB 725 (2006); see Juan A. Trevino, 54 ECAB 358 (2003).

7

E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 22, 2009 is affirmed.
Issued: November 6, 2009
Washington, DC

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

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

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

5