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

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

Docket No. 17-0669
Issued: July 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 3, 2017 appellant, through counsel, filed a timely appeal from a
December 19, 2016 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted employment incident.
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.

On appeal counsel contends that the claim was a simple one and should be accepted.
FACTUAL HISTORY
On May 13, 2014 appellant, then a 64-year-old laborer custodian, filed a traumatic injury
claim (Form CA-1) alleging that on April 24, 2014 he sustained a sprained right elbow moving a
cabinet in the performance of duty. He noted, “After the cabinet was unbolted from the wall I
loaded it on a heavy duty hand truck and was easing it down the incline from room 34 to room
M112 while my coworker held the door open. I felt the load shift off of the hand truck and
reflexively attempted to stop its movement with my right hand/arm. The cabinet toppled over
and fell on the floor. This is when I believe I incurred the injury to my right elbow/arm.”
Appellant submitted a narrative statement describing the events of April 24, 2014 and
noted that he was experiencing symptoms of chronic obstructive pulmonary disease (COPD). He
described a manager closing down rooms where the maintenance staff stored tools and personal
belongings. This room closure resulted in the need to remove the supply cabinets and personal
belongings from the rooms. Appellant loaded a cabinet on a heavy duty hand truck and began
easing it down an incline. When the load began to shift, he tried to stop it with his right hand.
The cabinet toppled to the floor. Appellant used leave due to his COPD and his right arm pain
became pronounced with swelling. A coworker witnessed the locker falling and appellant trying
to stop it.
Dr. Jeffrey R. Levenson, an infectious disease specialist, examined appellant on May 20,
2014 and diagnosed right elbow tendinitis and muscle tear. On the form report, he checked a
box marked “Yes” to indicate that appellant’s condition was work related and recommended
modified-duty work.
On May 24, 2014 Dr. Richard Herrick, a Board-certified orthopedic surgeon, reported
that appellant presented with swelling and sharp right elbow pain. He noted, “The onset was
sudden without injury and began on April 26, 2014.” Dr. Herrick reported, “The joint injury
occurred when [appellant] tried to catch something while he was pulling it on a hand truck and
he caught it with his right arm.” He diagnosed olecranon bursitis, partial triceps tendon tearing,
and mild strains of the medial ulnar collateral and radial collateral ligaments.
The employing establishment provided appellant with an authorization for examination or
treatment (Form CA-16).3
Appellant provided a series of reports completed by Erin N. Gwyn, a nurse practitioner,
as well as notes from Irma Witbreuk, an occupational therapist.
On July 2, 2014 appellant began filing claims for wage-loss compensation (Form CA-7)
for the period June 28 through July 25, 2014.

3

In a telephone memorandum dated July 16, 2014, an OWCP claims examiner informed appellant that his Form
CA-16 covered his medical expenses up to 60 days from the date of issuance.

2

In a July 11, 2014 letter, OWCP informed appellant that when his claim was received it
appeared to be a minor injury that resulted in minimal or no lost time from work. As such, it
administratively approved a limited amount of medical expenses without considering the merits
of the claim. OWCP reopened appellant’s claim as he had requested wage-loss compensation. It
requested that he provide additional factual and medical evidence in support of his traumatic
injury claim and afforded him 30 days for a response.
In a note dated June 19, 2014, Dr. Herrick repeated the history that the onset of
appellant’s right elbow condition was sudden, without injury, on April 26, 2014 while at work.
He diagnosed right olecranon bursitis, right ulnar collateral ligament sprain, and sprain of the
right ulnohumeral ligament.
Dr. Herrick completed a narrative report on July 28, 2014 and noted that appellant
experienced significant right elbow pain and swelling that started around April 26, 2014, which
“simply occurred while [appellant] was doing his work.” He diagnosed olecranon bursitis. A
magnetic resonance imaging (MRI) scan on May 12, 2014 demonstrated extensive partial tearing
along the triceps tendon as well as mild medial and radial collateral ligament strain. Dr. Herrick
opined that olecranon bursitis and lateral collateral ligament strain of the elbow were frequently
degenerative changes either caused by or increased by overuse of the elbow.
By decision dated August 22, 2014, OWCP denied appellant’s traumatic injury claim
finding that he had not established that the employment incident occurred as alleged. It noted
conflicting histories of injury documented in the reports of Dr. Herrick and appellant’s claim
form. OWCP further found that appellant had not submitted any medical evidence to establish
that a diagnosed medical condition was causally related to the work injury or event.
On September 3, 2014 counsel requested an oral hearing from OWCP’s Branch of
Hearings and Review. In a January 26, 2015 report, Dr. Herrick explained that on May 2, 2014
appellant indicated that his right elbow pain and swelling began on April 26, 2014 without
injury. He noted that on May 23, 2014 appellant reported that the elbow injury occurred when
he tried to catch something while he was pulling it on a hand truck and caught it with his right
arm. Appellant asserted that he initially forgot about the incident. Dr. Herrick provided his
findings on examination of olecranon bursitis and possible sprain as well as the May 12, 2014
MRI scan findings on olecranon bursitis, extensive partial tearing along the triceps tendon as
well as radial collateral, and ulnar collateral ligament strain. Appellant’s January 12, 2015 MRI
scan demonstrated persistent partial tearing of the insertion of the triceps tendon with
improvement of the collateral ligament injuries and resolution of the olecranon bursitis.
Dr. Herrick diagnosed partial tearing with chronic tendinosis or tendinitis of the right triceps
tendon. He determined, “In my medical opinion, considering all the facts of the injury, I believe
that the persistent partial tearing of the triceps tendon, and the tendinitis/tendinosis are, indeed,
directly related to the injury that occurred on the job; and the only one of which I have any
knowledge.” Dr. Herrick added, “There may be other causes for this problem; however, in this
particular case I believe [that] the present diagnosis is related to the injury initially described by
[appellant] as approximately on April 26, 2014. At the very minimum, he certainly had a
problem that was materially aggravated by the conditions of his employment, as I understand
them.”

3

Appellant testified at the oral hearing before an OWCP hearing representative on
February 26, 2015. He explained the reasons for the various descriptions of the cause of injury
which he provided to Dr. Herrick.
By decision dated May 12, 2015, OWCP’s hearing representative found that, based on
the witness’ statement, appellant had established that the employment incident of the falling
locker occurred as alleged on April 26, 2014. However, he further found that Dr. Herrick’s
January 26, 2015 report contained contradictions regarding whether appellant’s diagnosed
conditions were directly related to the April 26, 2014 work incident or was aggravated by
employment conditions. The hearing representative concluded that, as Dr. Herrick’s opinion was
contradictory, it was insufficient to establish that appellant’s medical condition was caused by
the accepted traumatic incident of the falling cabinet, and that appellant had thus not met his
burden of proof.
Counsel requested reconsideration on June 8, 2015 and submitted additional medical
reports. In a December 10, 2014 note, Dr. Michael J. Smith, a Board-certified orthopedic
surgeon, examined appellant due to right shoulder pain and loss of motion. He reported that the
onset of the right shoulder condition was sudden and that it occurred at work on April 24, 2014
while appellant was trying to pull a heavy object, which began to fall. Appellant injured his arm
while trying to recover the falling object. Dr. Smith reviewed a December 5, 2014 shoulder MRI
scan which revealed a partial thickness tear of the supraspinatus tendon and infraspinatus tendon.
Dr. Smith diagnosed right shoulder impingement syndrome and right rotator cuff syndrome. He
recommended surgery. On June 1, 2015 Dr. Smith repeated his history of injury. He examined
appellant’s right shoulder and found a positive impingement sign, loss of motion, as well as
weakness in the rotator cuff musculature. Dr. Smith diagnosed right shoulder rotator cuff tear.
He opined, “Causal relationship is that this injury is directly related to the workers’
compensation injury described above.”
By decision dated July 16, 2015, OWCP denied modification of its prior decision. It
found that Dr. Smith’s reports were insufficient to establish causal relationship as his opinion
was not well reasoned and was not based on a complete factual background.
Counsel requested reconsideration on June 23, 2016 and submitted evidence from
Dr. Herrick. On December 9, 2015 Dr. Herrick reported that appellant had right elbow pain
since April 24, 2014 when he was pulling a heavy hand truck with a locker on it, and the locker
started to slide off. Appellant reached with his right arm to stabilize the load and “injured his
arm then.” Dr. Herrick diagnosed partial tear of the triceps insertion area and noted that
appellant had continuing shoulder problems. He opined that appellant’s triceps injury was
primarily caused by the April 24, 2014 incident. Dr. Herrick noted that there was no evidence
that any other injury occurred, and no evidence that appellant had any previous elbow condition.
By decision dated December 19, 2016, OWCP denied modification of its prior decisions.
It found that Dr. Herrick’s reports lacked sufficient medical reasoning to establish appellant’s
traumatic injury claims.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an “employee of the United States” within the
meaning of FECA and that he or she filed the claim within the applicable time limitation.4 The
employee must also establish that he sustained an injury in the performance of duty as alleged,
and that his disability for work, if any, was causally related to the employment injury.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time, place of occurrence, and member or function of the body affected.”6 To determine whether
a federal employee has sustained a traumatic injury in the performance of duty, it must first be
determined whether a “fact of injury” has been established. First the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged.7 Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted employment incident.
4

R.C., 59 ECAB 427 (2008).

5

Id., Elaine Pendleton, 40 ECAB 1142, 1145 (1989).

6

20 C.F.R. § 10.5(ee).

7

John J. Carlone, 41 ECAB 354 (1989).

8

J.Z., 58 ECAB 529 (2007).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

Appellant filed a Form CA-1 alleging that he injured his right elbow on April 24, 2014
when he attempted to catch a locker which was falling from a hand truck. The employing
establishment provided him with a Form CA-16 authorization for medical treatment.12 OWCP
accepted that the April 24, 2014 work incident occurred as alleged. It denied the claim because
the medical evidence of record did not establish a causal relationship between appellant’s
claimed right arm conditions and the accepted April 24, 2014 employment incident. The Board
finds that he failed to meet his burden of proof to establish a work injury causally related to the
April 24, 2014 employment incident.
Dr. Herrick submitted a series of reports diagnosing olecranon bursitis, extensive partial
tearing along the triceps tendon, as well as mild medial and radial collateral ligament strain. He
initially opined on July 28, 2014 that olecranon bursitis and lateral collateral ligament strain of
the elbow were frequently degenerative changes either caused by or increased by overuse of the
elbow. This opinion is not supportive of appellant’s traumatic injury claim as Dr. Herrick
suggests that appellant’s work activities during a period longer than one workday or one work
shift resulted in the diagnosed conditions, or an occupational disease.13 Appellant alleged that
his condition was causally related to a single incident on April 24, 2014. If he believes that his
employment duties aggravated his condition over a period of days of shifts, this could be an
occupational disease.14 Furthermore, Dr. Herrick offered no medical reasoning to address how
and why appellant’s regular work duties would result in the diagnosed conditions. A mere
conclusion without the necessary rationale explaining how and why he believes that work
activities resulted in a diagnosed condition is insufficient to meet appellant’s burden of proof.15
On January 26, 2015 Dr. Herrick opined that appellant’s diagnosed right elbow
conditions were “directly related to the injury that occurred on the job.” He noted that there may
be other causes for this problem, but he believed that the diagnoses were related to the
April 26, 2014 injury. Dr. Herrick also suggested that appellant had a problem that was
“materially aggravated by the conditions of his employment.” On December 9, 2015 he reported
that appellant had right elbow pain since April 24, 2014. Dr. Herrick opined that appellant’s
tricep injury was primarily caused by the April 24, 2014 incident. He noted that there was no
evidence of any other injury and no evidence that appellant had any previous elbow condition.
Causal relationship must be based on rationalized medical opinion evidence. Dr. Herrick refers
to two different dates of injury April 24 and 26, 2014. A physician must accurately describe
appellant’s employment incident and medically explain the pathophysiologic process by which

12

When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from
the date of issuance, unless terminated earlier by OWCP. See C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608,
610 (2003).
13

D.S., Docket No. 15-0606 (issued July 2, 2015).

14

D.R., Docket No. 16-0528 (issued August 24, 2016).

15

Id.; G.M., Docket No. 14-2057 (issued May 12, 2015).

6

this incident would have caused or aggravated his condition.16 The Board has held that the fact
that a condition manifests itself or worsens during a period of employment or that work activities
produce symptoms revelatory of an underlying condition does not raise an inference of causal
relationship between a claimed condition and an employment event.17 Dr. Herrick failed to
provide medical reasoning in support of any of his various conclusions regarding the relationship
between appellant’s right arm conditions and the April 24, 2014 work incident.
Beginning in December 2014, Dr. Smith diagnosed right shoulder impingement
syndrome and right rotator cuff syndrome. He attributed these conditions to the April 24, 2014
work incident of trying to pull a heavy object, which began to fall. Dr. Smith opined that
appellant’s shoulder conditions were directly related to his “workers’ compensation injury.”
These reports addressed additional conditions not previously claimed by appellant. Dr. Smith
did not provide any bridging evidence explaining how the additional conditions claimed in
December 2014 were related to the April 24, 2014 employment incident.18 Furthermore, he did
not provide any medical explanation in support of his opinion on the causal relationship between
appellant’s newly alleged and diagnosed right shoulder condition and his employment incident.19
Appellant also provided a May 20, 2014 form report from Dr. Levenson, which
diagnosed right elbow tendinitis and muscle tear. Dr. Levenson indicated by checking a box
marked “yes” that appellant’s condition was work related. The Board has held that an opinion on
causal relationship which consists only of a physician checking “yes” to a medical form report
question on whether the claimant’s condition was related to the history given is of little probative
value. Without any explanation or rationale for the conclusion reached, such report is insufficient
to establish causal relationship.20
The Board finds that appellant’s traumatic injury claim must be denied as he failed to
establish a causal relationship between the accepted employment incident and his diagnosed
medical conditions. None of the physicians provided a rationalized opinion establishing a causal
relationship between his employment incident on April 24, 2014 and his diagnosed conditions.
The Board has long held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.21
Appellant provided reports from a nurse practitioner and an occupational therapist.
Healthcare providers such as nurses, nurse practitioners, acupuncturists, physician assistants, and
physical or occupational therapists are not considered physicians under FECA and their reports
16

G.G., Docket No. 15-0234 (issued April 9, 2015).

17

N.L., Docket No. 17-0454 (issued April 6, 2017).

18

Adolph C. Bowman, Docket No. 00-2815 (issued July 5, 2001).

19

Supra note 14.

20

B.M., Docket No. 17-0324 (issued March 24, 2017); Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

21

Willie M. Miller, 53 ECAB 697 (2002).

7

and opinions do not constitute competent medical evidence to establish a medical condition,
disability, or causal relationship.22
As noted above, the Board rejects counsel’s contentions on appeal and finds that the
medical evidence of record lacks the necessary medical rationale to meet appellant’s burden of
proof to establish a traumatic injury resulting in right upper extremity conditions.
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 his burden of proof to establish a traumatic
injury causally related to the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989).

8


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

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

Docket No. 17-0333
Issued: July 27, 2017

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 November 30, 2016 appellant, through counsel, filed a timely appeal from an
August 4, 2016 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 to consider the merits of the 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 permanent
impairment of his right lower extremity due to his accepted employment injury thereby
warranting a schedule award.
On appeal counsel contends that the report of the impartial medical examiner (IME) was
not sufficiently detailed and not correlated with the American Medical Association, Guides to the
Evaluation of Permanent Impairment3 to constitute the special weight of the medical opinion
evidence. He requested clarification from a second impartial medical examination.
FACTUAL HISTORY
This case has previously been before the Board. The facts outlined in the Board’s prior
decisions are incorporated herein by reference. The relevant facts are as follows.
On April 18, 2003 appellant, then a 61-year-old clerk filed a traumatic injury claim (Form
CA-1) alleging that he injured his back while lifting a parcel in the performance of duty on
April 18, 2003. OWCP accepted his claim for aggravation of sciatic nerve on June 12, 2003. A
magnetic resonance imaging (MRI) scan dated September 11, 2003 demonstrated a very mild
grade I/IV anterolisthesis of L3 on L4 without lysis with bilateral facet degeneration and mild
disc bulges from L3 to S1. Appellant had x-rays on December 14, 2006 which showed mild
grade I/IV anterolisthesis of L3 on L4. He had a second MRI scan which found no gross interval
change with no herniation or foraminal stenosis. On June 14, 2007 appellant filed a claim for a
recurrence of disability (Form CA-2a) commencing December 7, 2006 which OWCP accepted
on September 13, 2007.
Appellant filed a schedule award claim (Form CA-7) on March 4, 2010. In support of his
claim, he submitted a report dated February 2, 2009 from Dr. Arthur Becan, an orthopedic
surgeon, who diagnosed chronic post-traumatic lumbar strain and sprain, herniated disc L3-4,
anterolisthesis with spinal instability L4 over L5, discogenic disease of the lumbar spine and left
lumbar radiculopathy. Dr. Becan evaluated appellant’s right leg and found a class 1 moderate
sensory deficit of the right L5 and S1 nerve roots (sciatic) with a default impairment of four
percent. He found functional history modifiers of 3 and clinical studies modifiers of 3 to reach a
net adjustment of 4 and a final right leg impairment of nine percent. In regard to appellant’s
motor strength deficit of the right quadriceps/extensor halluces longus (sciatic), Dr. Becan found
that the diagnosis had a default rating of nine percent for a class 1, mild IV/V deficit. He found
functional history and clinical studies modifiers of 3 and a net adjustment of 4 to reach 13
percent permanent impairment of the right leg. Dr. Becan found a total of 21 percent right leg
permanent impairment. He advised that appellant reached maximum medical improvement
(MMI) on February 2, 2009.
OWCP referred appellant, a statement of accepted facts and a list of specific questions to
Dr. Edward B. Krisiloff, a Board-certified second opinion orthopedic surgeon, to determine
appellant’s permanent impairment due to his accepted back injury. In a report dated June 30,
3

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

2

2010, Dr. Krisiloff described his physical examination of appellant and noted that he found no
hard neurologic findings. He noted, “The motor examination reveals some breakaway weakness
that is likely secondary to pain and is not a true neurologic finding. The patient also complains
of some decreased sensation, but a careful examination shows that it follows no anatomic
dermatomal distribution and is therefore not a reliable finding. Dr. Krisiloff concluded, “He did
not exhibit any hard neurologic findings in the lower extremities on my examination. Therefore,
he has no permanent neurologic residuals as a result of his condition.”
On April 29, 2011 OWCP requested a supplemental report from Dr. Krisiloff.
Dr. Krisiloff responded on June 14, 2011 and opined that appellant reached MMI in July 2003.
He noted that appellant had continued issues with his lower back and left leg, but these were
related to his underlying degenerative disc disease and not the employment injury of
April 18, 2003. Dr. Krisiloff found that appellant had no objective neurologic deficits in the
lower extremities and that the peripheral nerve impairment table for residual radiculopathy could
not be used. He noted, “Left lower extremity impairment would therefore, be zero.”
In a report dated September 19, 2011, Dr. Becan reviewed Dr. Krisiloff’s report stating
that it contained no hard neurologic findings, breakaway weakness and decreased sensation
without anatomic dermatomal distribution. He noted that Dr. Krisiloff did not perform Semmes
Weinstein Monofilament testing and that motor strength deficits were not graded. Dr. Becan
reported that he found positive findings on examination on February 2, 2009.
By decision dated November 23, 2011, an OWCP hearing representative found that
appellant had no permanent impairment of the left leg and remanded the case for additional
development regarding any permanent impairment of appellant’s right leg.4
After further developing the claim with regard to the right lower extremity, OWCP issued
an August 2, 2012 decision finding that appellant had no permanent impairment of his right leg
due to his April 18, 2003 work injury. Counsel requested an oral hearing and, on February 19,
2013 an OWCP hearing representative affirmed the August 2, 2012 decision, finding that
appellant had no right leg permanent impairment. Appellant appealed to the Board. The Board
reviewed the February 19, 2013 decision and by decision dated December 24, 20135 found that
there was an unresolved conflict of medical opinion evidence between Drs. Becan and Krisiloff
regarding the permanent impairment of appellant’s right leg. The Board remanded the case for
referral to an IME to resolve the conflict.
In a letter dated December 30, 2013, counsel asked to participate in the selection of the
IME. By decision dated January 2, 2014, OWCP denied appellant’s request to participate in the
selection of the IME.

4

Appellant appealed the November 23, 2011 decision to the Board with respect to permanent impairment of the
left lower extremity. The Board reviewed this decision on June 13, 2013 and affirmed the hearing representative’s
decision that appellant had no permanent impairment of his left lower extremity.
5

Docket No. 13-1277 (issued December 24, 2013).

3

On March 27, 2014 OWCP referred appellant, a statement of accepted facts and a list of
questions to Dr. Aaron Sporn, a Board-certified orthopedic surgeon for an impartial medical
evaluation. Dr. Sporn completed a report on April 15, 2014 noting that he had reviewed the
statement of accepted facts, appellant’s medical records and performed a physical examination.
He described appellant’s history of low back injury. Appellant reported his current symptoms
and noted that he had no radiating-type symptoms into his right leg. He noted that he stumbled
when walking. On examination Dr. Sporn found that appellant’s gait was normal, with mildly
diminished range of motion in the thoracic and lumbar spines. He reported no trigger points,
swelling, spasm, or clinically significant curves in the spine. Dr. Sporn noted that appellant’s
right lower extremity demonstrated range of motion within normal limits, with no signs of soft
tissue swelling, tenderness, tendinitis, bursitis, ligamentous laxity, or nerve entrapment. He
performed a peripheral neurological examination including motor strength testing, testing of
reflexes, and test of sensation. Dr. Sporn noted that there were no muscle deficits of the right
lower extremity and that sensation of the right lower extremity was intact with grade 1 reflexes.
He diagnosed lumbar sprain and strain with left-sided lumbar radiculopathy symptoms.
Dr. Sporn reviewed Dr. Becan’s findings and conclusions regarding appellant’s right leg. He
noted that appellant reported no right lower extremity symptoms. Dr. Sporn noted that appellant
had significant neurological deficits of the left lower extremity, but that neurological
examination of appellant’s right lower extremity was normal. He concluded that on a strictly
objective basis appellant’s examination demonstrated no abnormalities in the right leg
attributable to appellant’s accepted employment injury. Dr. Sporn noted, “There does not exist
any disability or impairment of the right lower extremity that [is] causally related to the April 18,
2003 accident.”
OWCP’s medical adviser reviewed Dr. Sporn’s report on May 8, 2014 and agreed with
his findings of no permanent impairment of the right lower extremity as there were no objective
findings of any neuropathy.
By decision dated June 5, 2014, OWCP denied appellant’s claim for a schedule award
due to permanent impairment of his right lower extremity. Counsel requested a review of the
written record from OWCP’s Branch of Hearings and Review on June 10, 2014.
OWCP’s hearing representative issued a decision on November 20, 2014 finding that
Dr. Sporn’s report was entitled to the special weight of the medical evidence. He noted that
Dr. Sporn based his report on a proper factual and medical background and provided complete
findings on physical examination noting no objective findings and no basis for a rating due to
permanent impairment of the right lower extremity. OWCP’s hearing representative noted that
there were no motor or sensory impairments that could be rated under the appropriate tables of
the A.M.A., Guides. He affirmed OWCP’s June 5, 2014 decision denying a schedule award.
Appellant appealed to the Board. The Board reviewed the November 20, 2014 decision and by
decision dated July 6, 20156 found that Dr. Sporn’s report adequately explained why appellant
did not qualify for an impairment rating and that his report was entitled to special weight.

6

Docket No. 15-0764 (issued July 6, 2015).

4

On November 15, 2015 appellant, through counsel, requested reconsideration. Counsel
submitted a December 15, 2014 report from Dr. Becan which he contended established 23
percent permanent impairment of the right lower extremity. In the December 15, 2014 report,
Dr. Becan reviewed the prior medical evidence and disagreed with Dr. Sporn’s findings,
asserting that Dr. Sporn failed to provide sufficient detail regarding the lower extremity muscles
tested and failed to properly utilize Semmes Weinstein Monofilament testing to determine
sensation. Dr. Becan concluded, “According to my evaluation of February 2, 2009 and the
sensory abnormalities found using Semmes Weinstein Monofilament testing as well as motor
strength testing with specific muscles tested, mainly the quadriceps, hamstrings, gastrocnemius,
and extensor halluces longus bilaterally, I stand by my impairment as follows using The Guides
Newsletter July/August 2009 with … a final right lower extremity impairment of 23 percent
[permanent impairment].” Dr. Becan provided his impairment calculations based on his original
February 2, 2009 examination.
By decision dated August 4, 2016, OWCP denied modification of its prior decisions. It
found that the special weight of the medical evidence remained with Dr. Sporn and that
Dr. Becan’s report was insufficient to create a conflict or establish appellant’s permanent
impairment.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, 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 discretion of OWCP. 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. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.9
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.10 Because neither FECA nor the regulations provide for the

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

W.D., Docket No. 10-274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

5

payment of a schedule award for the permanent loss of use of whole person or the back or
spine,11 no claimant is entitled to such an award.12
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.14 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3.700 of its
procedures which memorializes proposed tables outlined in a July/August 2009, The Guides
Newsletter.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his right lower extremity due to his accepted employment injury, thereby not
warranting a schedule award.
OWCP accepted appellant’s claim for aggravation of sciatic nerve on June 12, 2003. He
filed a claim for a schedule award and submitted a report from Dr. Becan dated February 2, 2009
which supported bilateral lower extremity impairments due to the accepted condition. Dr. Becan
found that appellant had total right leg impairment of 21 percent permanent impairment. In its
December 24, 2013 decision, the Board found that this report was in conflict with the findings of
Dr. Krisiloff regarding the percentage of permanent impairment of appellant’s right lower
extremity. On remand, OWCP referred appellant to Dr. Sporn for an impartial medical
examination to resolve this conflict. The Board, on July 6, 2015, found that Dr. Sporn’s report
was sufficient to resolve the conflict of medical opinion evidence and did not establish any
permanent impairment of appellant’s right lower extremity due to his accepted employment
injury.
11

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

W.D., supra note 10. Timothy J. McGuire, 34 ECAB 189 (1982).

13

W.D., supra note 10. Rozella L. Skinner, 37 ECAB 398 (1986).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5c(3) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Exhibit 4 (January 2010).
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010)
(Exhibits 1, 4).

6

On November 15, 2015 appellant requested reconsideration and submitted a
December 15, 2014 report from Dr. Becan which reviewed the prior medical evidence and
alleged deficiencies in Dr. Sporn’s report. Dr. Becan concluded that based on his February 2,
2009 evaluation, appellant had 23 percent permanent impairment of his right lower extremity.
His December 15, 2014 report updated his February 2, 2009 report in which he found appellant
had 21 percent permanent impairment of the right lower extremity. Dr. Becan did not physically
examine appellant after the February 2, 2009 report. The Board has held that an impairment
rating that is not based on reasonably current examination findings is of little probative value.16
The Board finds that Dr. Becan did not base his rating on reasonably current findings and
therefore his report is of little probative value. The Board further notes that as Dr. Becan was on
one side of the conflict that Dr. Sporn resolved, the additional report from Dr. Becan, which
lacks probative value as previously noted, is insufficient to overcome the special weight
accorded Dr. Sporn’s report as the impartial medical specialist or to create a new conflict with
it.17 Therefore, the Board finds that appellant has not met his burden of proof.
The Board notes that counsel’s contentions on appeal regarding IME Dr. Sporn’s
findings, were raised in a prior appeal and addressed in the Board’s July 6, 2015 decision.
Furthermore, as Dr. Becan in his December 15, 2014 report did not provide any new physical
findings to support his updated impairment rating, the Board finds that counsel’s contentions are
not supported.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his right lower extremity due to his accepted employment injury thereby
warranting a schedule award.

16

See P.P., Docket No. 16-0831 (issued August 16, 2016); P.S., Docket No. 12-0649 (issued February 14, 2013)
(finding that a physician’s January 2010 impairment rating was of reduced probative value as he relied on
October 2007 findings as the basis for this updated impairment rating).
17

R.R., Docket No. 16-0595 (issued August 5, 2016); Dorothy Sidwell, 41 ECAB 857, 874 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 27, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF STATE, U.S. EMBASSY,
Kabul, Afghanistan, Employer
__________________________________________

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

Docket No. 19-0045
Issued: June 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 8, 2018 appellant, through counsel, filed a timely appeal from an August 8,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on April 10, 2015, as alleged.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are
as follows.
On August 24, 2015 appellant, then a 53-year-old construction manager, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a left knee injury on Friday, April 10, 2015
while walking down a concrete ramp at 5:00 p.m. while in the performance of duty. On the reverse
side of the claim form, D.B., appellant’s supervisor, indicated on August 27, 2015 that appellant’s
regular work hours were 8:00 a.m. to 5:00 p.m. Sunday through Thursday and Saturday. Appellant
stopped work on June 16 and returned to work on July 23, 2015.
On January 16, 2016 OWCP received a June 3, 2015 magnetic resonance imaging (MRI)
scan and reports dated June 4 and 24, 2015 from Dr. Michael J. Slimack, a Board-certified
orthopedic surgeon. Dr. Slimack, based on the June 3, 2015 MRI scan, diagnosed left knee lateral
meniscal tear.
In a February 2, 2016 development letter, OWCP advised appellant that when his claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
The claim was administratively approved to allow payment for limited medical expenses, but the
merits of the claim had not been formally adjudicated. OWCP advised that because appellant filed
a claim for wage-loss compensation, his claim would be formally adjudicated. It advised that the
evidence was insufficient to establish that he experienced the claimed incident or that his injury
had been caused by an employment incident in the performance of duty. OWCP requested that
appellant complete the attached questionnaire. Appellant was afforded 30 days to submit the
necessary evidence.
On February 17, 2016 OWCP received appellant’s completed factual development
questionnaire. Appellant related that he was on duty and in his office on April 10, 2015 and hurt
his knee while walking down a ramp at 5:00 p.m. He noted that the injury occurred on the Embassy
compound, which is walled and includes housing, recreation, and work space. According to
appellant, employees were always “on the clock” due to the heightened security risks and austere
and restrictive living conditions. He also related that earlier, on April 10, 2015, he had played
basketball from 1:00 to 2:00 p.m. with no difficulty or knee pain.
By decision dated March 16, 2016, OWCP denied the claim finding that appellant had not
met his burden of proof to establish that he had been in the performance of duty on April 10, 2015
since Friday was not a scheduled workday.

3

Order Remanding Case, Docket No. 17-1408 (issued December 11, 2017).

2

On March 31, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The requested hearing was held on October 24, 2016.
On October 18, 2016 OWCP received a July 16, 2016 report from Dr. Slimack noting
appellant was status post left knee arthroscopic surgery.
By decision dated December 9, 2016, OWCP’s hearing representative set aside the
March 16, 2016 decision and remanded the case for further development of the evidence. He
found that there was a preliminary issue of whether appellant was an independent contractor or a
federal employee and cited to the relevant provisions of OWCP’s procedure manual and elements
to be considered.4 If OWCP determined that appellant was an employee under 5 U.S.C. § 8101(1),
it was instructed to determine whether he was in the performance of duty at the time of the April 10,
2015 incident.
In a letter dated December 13, 2016, OWCP requested additional information from
appellant and the employing establishment. The employing establishment was asked for
clarification on whether appellant was a civil employee at the time of the accepted April 10, 2015
incident and whether he had been in travel status.
In a February 1, 2017 letter, the employing establishment responded to OWCP’s questions
and provided a copy of appellant’s employment contract. It indicated that he was not in the
performance of duty at the time of the April 10, 2015 incident nor was he in travel status since his
permanent duty station was Kabul, Afghanistan. As such, appellant was afforded an overseas
allowance, danger pay, and special incentive differential due to the job in Kabul. The employing
establishment noted that the terms of his contract did not require him to be available 24/7, although
overtime, when necessary, was authorized. Furthermore, it contended that neither appellant’s
walking on the grounds of the Embassy compound nor being able to depart under dangerous
conditions established that he was working or that he was “on the clock” at the time of the incident.
A copy of the personal services contract form noted the terms of his employment including that he
was a U.S. citizen hire for personal services abroad and his duty station was located in Kabul,
Afghanistan. The terms of appellant’s contract also noted that his workweek was not to be less
than 40 hours and was to coincide with the workweek of employees at the Embassy or cooperating
country agency.
By decision dated April 4, 2017, OWCP denied modification of the prior decision finding
that appellant’s permanent workstation was Kabul, Afghanistan, that he was not in travel status at
the time of the April 10, 2015 incident, and that appellant was not required to be available for work
24/7.
On June 14, 2017 appellant, through counsel, filed an appeal with the Board. In an order
remanding case dated December 11, 2017, the Board set aside the April 4, 2017 decision and
remanded for OWCP to make proper findings of fact as to whether appellant was an employee

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Civil Employee, Chapter 2.0802.6 (June 1995).

3

under 5 U.S.C. § 8101(1), and if he was an employee, whether he was in the performance of duty
at the time of the April 10, 2015 incident.5
By decision dated March 1, 2018, OWCP denied the claim finding that appellant had not
established that he was a federal civilian employee.
On May 14, 2018 OWCP received counsel’s request for reconsideration. Counsel
contended that appellant was a civilian employee at the time of the accepted April 10, 2015
incident and submitted W-2 Wage and Tax statements for 2014, 2015, and 2016 in support of his
request. These statements denoted the employing establishment as appellant’s employer.
By decision dated August 8, 2018, OWCP granted modification as it found the evidence
established appellant’s status as a civil employee. However, it denied his claim finding that his
injury had not occurred in the performance of duty. OWCP found that appellant had not been on
the clock at the time of the incident as he was not required to work on Friday nor was he required
to be available 24/7. Furthermore, it determined that he was not entitled to the extended coverage
afforded an employee in temporary travel status because Kabul, Afghanistan was his duty station.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might befall
an employee contemporaneous or coincidental with his or her employment. Liability does not
attach merely upon the existence of an employee/employing establishment relation. Instead,
Congress provided for the payment of compensation for “the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.”9 The phrase “while
in the performance of duty” has been interpreted by the Board to be the equivalent of the commonly
5

See supra note 3.

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

4

found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has held: “In the compensation field, to occur
in the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be [stated] to be engaged in his or her master’s business; (2) at a place where he
or she may reasonably be expected to be in connection with the employment; and (3) while he or
she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”10 In deciding whether an injury is covered by FECA, the test is whether, under
all the circumstances, a causal relationship exists between the employment itself, or the conditions
under which it is required to be performed, and the resultant injury.11
ANALYSIS
The Board that appellant has not met his burden of proof to establish an injury in the
performance of duty on April 10, 2015, as alleged.
The Board has previously explained that it is the employee’s burden of proof to submit
sufficient evidence necessary for OWCP to make a determination as to whether he was in the
course of federal employment at the time of the incident.12 The record reflects that appellant’s
duty station was Kabul, Afghanistan and his regular work hours were 8:00 a.m. to 5:00 p.m.
Sunday through Thursday and Saturday. The date in question, April 10, 2015, was not a scheduled
workday for appellant as it was a Friday. Appellant related that he had played basketball from
1:00 to 2:00 p.m., and had worked that day. No details were given as to the work he performed,
or the hours he worked. No further details or evidence was provided other than appellant’s
allegation that he was on call 24/7. However, the employing establishment denied appellant’s
allegation that he was on call 24/7, “on the clock” or working on April 10, 2015. In addition, the
contract appellant signed indicated that overtime was allowed when approved. He has not
submitted evidence showing that the employing establishment approved overtime work on
April 10, 2015, a nonscheduled workday. The Board finds that appellant has not met his burden
of proof to establish that his injury occurred at a time when he was fulling the duties of his federal
employment or doing something incidental thereto as the evidence submitted is insufficient.13
Thus, appellant has not established that he sustained an injury in the performance of duty.14
On appeal counsel argues that OWCP erred in denying appellant’s claim and ignoring his
testimony that he was required to be available 24/7. Contrary to his contention, it found that the
evidence of record did not support appellant’s contention that he was required to be available 24/7.

10

See D.S., Docket No. 14-1624 (issued April 3, 2015); see also George E. Franks, 52 ECAB 474 (2001).

11

Mark Love, 52 ECAB 490 (2001).

12

See A.C., Docket No. 15-0767 (issued July 15, 2015).

13

Supra note 10.

14

As appellant has failed to establish that the injury occurred in the performance of duty, the Board need not address
the medical evidence of record. A.S., Docket No. 17-1880 (issued December 12, 2018); Marlon Vera, 54 ECAB
834 (2003).

5

The record is devoid of evidence supporting appellant’s assertion and he bears the burden of proof
to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on April 10, 2015, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Columbus, OH,
Employer
__________________________________________

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

Docket No. 11-875
Issued: January 13, 2012

Case Submitted on the Record

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

JURISDICTION
On February 23, 2011 appellant, through counsel, filed a timely appeal from a merit
decision of the Office of Workers’ Compensation Programs (OWCP) dated January 12, 2011
denying wage-loss compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that he is entitled to wage-loss compensation
beginning March 27, 2010 and continuing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 21, 2010 appellant, then a 37-year-old mail handler, filed a traumatic injury
claim alleging that on that date he strained his left upper leg and thigh when the anti-fatigue mat
he was standing on slipped out from under him. OWCP accepted the claim for left hip and groin
strains.
On April 12, 2010 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 27 to April 12, 2010.
On April 15 and 19, 2010 OWCP received medical evidence from Dr. Richard E.
Gibbons, a treating physician,2 and Dr. Paul B. Oppenheimer, a treating physician
Board-certified in anesthesiology. Both physicians are associates of Franklin Park Physical
Medicine, Whitehall, OH.
In a March 22, 2010 disability certification, Dr. Gibbons advised that appellant was
totally disabled beginning March 18, 2010. He estimated that appellant would return to work on
April 1, 2010.
In a March 29, 2010 attending physician’s report (Form CA-20), Dr. Oppenheimer listed
that appellant sustained a work injury on January 21, 2010 when he slipped on a mat and twisted
while falling. He diagnosed groin and left hip strains and checked “yes” to the question of
whether the condition was employment related. Dr. Oppenheimer noted March 22, 2010 as the
first date of treatment with total disability began January 21, 2010. He wrote “unknown” to the
question of when appellant would be able to return to work.
In disability certificates dated April 2 and 9, 2010, Dr. Oppenheimer indicated that
appellant was unable to work for the period April 2 through 24, 2010.
In an April 12, 2010 report, Dr. Gibbons related that appellant sustained an injury at work
on January 21, 2010 and has been treated at Franklin Park Physical Medicine since
March 22, 2010. Appellant related significant lumbar spine range of motion including groin area
and low back pain. Diagnoses included lumbosacral strain/sprain, left hip strain “has not
clinically reached the level of function to return to work.”
By letter dated April 26, 2010, OWCP informed appellant that the evidence of record was
insufficient to establish total disability due to the accepted employment injury beginning
March 27, 2010. It advised him as to the medical information required to support his claim.
Appellant was given 30 days to provide the requested information.
Following the April 26, 2010 letter from OWCP, appellant submitted additional
wage-loss compensation claims for April 10 to 23, April 24 to May 7 and May 8 to June 4, 2010
and medical evidence.

2

Dr. Gibbons’ credentials are not in the record and cannot be verified.

2

In an April 19, 2010 attending physician’s form, Dr. Gibbons noted the injury history and
reported brief physical findings. Diagnoses included groin and left hip strain and lumbosacral
strain/sprain. Dr. Gibbons checked “yes” that the diagnosed conditions were employment
related. He noted the period of total disability as beginning January 21, 2010 and that it was
undetermined as to when appellant would be able to return to work.
In disability certificates dated April 23, May 5 and 14, 2010, Dr. Oppenheimer listed that
appellant was disabled from working for the period April 24 to May 24, 2010.
On May 4, 2010 Dr. Vincent K. Cho, a treating Board-certified family practitioner,
indicated that appellant had been disabled from work as a result of his employment injury from
January 29 to February 8, 2010. He indicated that appellant “may return to work on
[February] 9, [20]10, after that until [February] 14, [20]10 he is to do sit down work only” due to
the lack of information about his preinjury work duties.
In a May 19, 2010 report, Dr. Oppenheimer noted appellant’s January 21, 2010
employment injury and that his primary complaints had been left hip and groin pain. He opined
that appellant’s physical capacity was limited as a result of the employment injury.
On June 8, 2010 OWCP received disability certificates from Drs. Gibbons and
Oppenheimer indicating that appellant was totally disabled from working for the period May 14
to June 14, 2010.
In an attending physician’s reports dated May 19 and 26, 2010, Dr. Oppenheimer,
checked “yes” to the question of whether the diagnosed conditions were employment related, but
provided no diagnosis on the form. He indicated that appellant was currently totally disabled and
it was unknown as to a return to work date.
In a June 7, 2010 attending physician’s report, Dr. Gibbons checked “yes” to the question
of whether the diagnosed conditions were employment related, with no diagnoses noted on the
form. He noted that appellant continued to be totally disabled with an undetermined return to
work date.
By decision dated June 14, 2010, OWCP denied appellant’s claim for wage-loss
compensation beginning March 27, 2010.
In a July 5, 2010 attending physician’s form, Dr. Gibbons noted that appellant slipped
and fell on January 21, 2010 and diagnosed left superolateral acetabular degeneration with
suspected paralabral cyst formation and capsulitis. He checked “yes” to the question of whether
the diagnosed conditions were employment related. Dr. Gibbons noted July 7, 2010 as the date
appellant was anticipated to return to work. In an attached disability certificate, he noted the
period of total disability as March 26 to July 6, 2010 with a return to limited duty on
July 7, 2010.
In a July 11, 2010 letter, appellant’s counsel requested a telephonic hearing, which was
held on November 5, 2010.

3

Therefore, OWCP received a June 21 and 28, 2010 attending physician’s reports, a
June 14, 2010 disability certificate, a June 14 to 28, 2010 and June 29, 2010 report from
Dr. Gibbons and a June 30, 2010 report and July 9, 2010 disability certificate releasing appellant
to four hours of work on July 13, 2010 from Dr. Oppenheimer. Dr. Gibbons diagnosed left
superolateral acetabular degeneration with suspected paralabral cyst formation and capsulitis and
checked “yes” to the question of whether the diagnosed conditions were employment related.
No date for a return to work was listed.
On June 29, 2010 Dr. Gibbons diagnosed labral degeneration with small cyst adjacent to
the superolateral acetabular, a chronic tear and mild capsulitis based on a review of a June 8,
2010 magnetic resonance imaging (MRI) scan. He opined that a definite return to work dated
could not be established, but that a return on July 21, 2010 might be reasonable.
On June 30, 2010 Dr. Oppenheimer noted that appellant’s groin, left hip and low back
pain has persisted despite treatment and recommended referral for pain management. He noted
that a June 8, 2010 MRI scan revealed labral degeneration with small cyst adjacent to the
superolateral acetabular, a chronic tear and mild capsulitis. Dr. Oppenheimer related that
appellant’s physical capacity would be limited based on the MRI scan findings.
In attending physician’s reports dated July 20 to August 2, 2010, Dr. Gibbons indicated
that appellant could return to light-duty work on July 7, 2010.
In an August 2, 2010 disability certificate, Dr. Gibbons noted total disability from
July 16, 2010 with a release to return to work of August 3, 2010. On an August 4, 2010
disability certificate, he noted August 4, 2010 as the date appellant could return to work.
In an August 21, 2010 attending physician’s report, Dr. Gibbons noted the period of total
disability as January 21 to July 6, 2010 and partial disability as July 7 to August 2, 2010.
Dr. Gibbons, in disability certificates dated August 16 and 30, 2010, noted that appellant
was totally disabled on August 11, 13, 16 and 20, 2010 and could return to work on August 12,
14, 17, 19 and 21, 2010.
In a September 8, 2010 disability certificate, Dr. Oppenheimer indicated that appellant
was totally disabled due to pain on September 1, 3 and 4, 2010 and could return to work on
September 7, 2010.
On November 5 and 8, 2010 OWCP received July 19, 2010 report from Dr. Chu and an
August 24, 2010 report from Dr. Gibbons.
On July 19, 2010 Dr. Chu related that appellant had been disabled from working during
the period January 29 to February 8, 2010 as a result of the accepted hip and groin strains
sustained on January 21, 2010. He indicated that appellant returned briefly to work and then
stopped because of the pain. Dr. Chu stated that appellant’s last visit was on March 2, 2010 and
that he had placed appellant off work until March 17, 2010.
On August 24, 2010 Dr. Gibbons opined that appellant’s disability was directly related to
the accepted January 21, 2010 employment injury. He related that appellant’s progression of
4

symptoms was the reason for his disability from work. Dr. Gibbons noted that a June 8, 2010
MRI scan clarified appellant’s symptoms based on the findings of a superolateral acetabulum
cyst paralabral, capsulitis and chronic tear with scarring. In concluding, he opined that these
“degenerative processes contributed to progressively more severe pain and disability” resulting
in appellant’s inability to work.
By decision dated January 12, 2011, an OWCP hearing representative affirmed the denial
of appellant’s claim for wage-loss compensation beginning March 27, 2010.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.5 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.6 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his federal
employment, but who nonetheless has the capacity to earn the wages he was receiving at the time
of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.

3

The Board notes that, following the January 12, 2011 hearing representative’s decision, OWCP received
additional evidence. However, the Board may only review evidence that was in the record at the time OWCP issued
its final decision. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued
September 23, 2009).
4

5 U.S.C. §§ 8101-8193.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, supra note id.; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

5

To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).11 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 factors identified by the claimant.12
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.13
ANALYSIS
OWCP accepted appellant’s claim for left hip and groin strains as a result of the
January 21, 2010 employment injury. Appellant filed claims for wage-loss compensation for the
period March 27 through June 4, 2010. It is his burden of proof to establish the claimed period
of employment-related disability. On April 26, 2010 OWCP advised appellant of the evidence
needed to establish his claim. However, he did not submit sufficient reasoned medical evidence
to establish that his disability beginning March 27, 2010 was causally related to his accepted left
hip and groin strains. Appellant did not submit a narrative medical report in which treating
physician explained how his disability was related to the accepted January 21, 2010 employment
injury.
Appellant submitted form reports from both Drs. Gibbons and Oppenheimer advising that
he was totally disabled as of January 21, 2010 with an unknown or undetermined return to work
date. Dr. Gibbons released appellant to light-duty work on July 7, 2010. The record also
contains reports referencing the accepted January 21, 2010 employment injury and diagnosing
conditions including lumbosacral sprain/strain, left hip strain, labral degeneration with small cyst
adjacent to the superolateral acetabular, a chronic tear and mild capsulitis. None of the reports
are sufficient to support appellant’s claim as neither physician provided a narrative opinion
exploring the relationship of his inability to work on the dates in question to the accepted
conditions. The reports do not constitute rationalized medical opinion as the physicians did not
address how disability was due to the accepted employment injury nor were there any detailed
physical findings. The Board notes that OWCP has not accepted the conditions of lumbosacral
sprain/strain, labral degeneration with small cyst adjacent to the superolateral acetabular, a
chronic tear and mild capsulitis as caused or aggravated by the January 21, 2010 employment
injury. No explanation was given by either physician as to how these additional diagnosed
conditions were caused or aggravated by the January 21, 2010 employment injury other than
11

A.D., 58 ECAB 149 (2006).

12

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

13

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

noting they were found on an June 8, 2010 MRI scan and supported appellant’s symptoms. The
Board has held that medical conclusions unsupported by rationale are of little probative value.14
As neither physician provided any supporting rationale for their opinions that the disability was
employment related, these reports are insufficient to establish appellant’s claim for disability.
Appellant also submitted disability certificates from Drs. Gibbons and Oppenheimer
placing him off work beginning March 18, 2010 with a return to light-duty work on July 7, 2010.
Following his return to work, both physicians reported intermittent periods of disability from
August 11 through September 4, 2010. However, neither Dr. Gibbons nor Dr. Oppenheimer
addressed the cause of appellant’s disability and therefore these disability notes/forms are
insufficient to support appellant’s claim for disability. Medical evidence which offers no opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.15 Furthermore, neither physician provided findings on examination in the
disability certificates. Generally, findings on examination are needed to justify a physician’s
opinion that an employee is disabled from work.16 As these certificates contain no findings on
examination or opinion regarding the cause of disability, they are insufficient to support
appellant’s claim that his disability was employment related.
The reports from Dr. Chu’s reports predate appellant’s claimed period of disability.
Without reasoned medical evidence supporting that appellant had employment-related disability
during the period in question, he has not met his burden of proof to establish his claim for
wage-loss compensation beginning March 27, 2010.
An award of compensation may not be based on surmise, conjecture or speculation.17
Neither the fact that appellant’s condition became apparent during a period of employment nor
his belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.18 Causal relationship must be established by
rationalized medical opinion evidence.19 As appellant failed to submit such evidence, OWCP
properly denied his claim for compensation for beginning March 27, 2010.
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.

14

Willa M. Frazier, 55 ECAB 379 (2004).

15

Willie M. Miller, 53 ECAB 697 (2002).

16

Laurie S. Swanson, 53 ECAB 517 (2002).

17

D.I., 59 ECAB 158 (2007); D.E., 58 ECAB 448 (2007); Paul E. Thams, 56 ECAB 503 (2005).

18

G.T., 59 ECAB 447 (2008); V.W., 58 ECAB 425 (2007); Ronald K. Jablanski, 56 ECAB 616 (2005).

19

Roy L. Humphrey, 57 ECAB 238 (2005); Dennis M. Mascarenas, 49 ECAB 215 (1997).

7

CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss compensation
beginning March 27, 2010 causally related to his accepted left hip and groin strains.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2011 is affirmed.
Issued: January 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 09-119
Issued: March 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from a February 11, 2008 decision of
the Office of Workers’ Compensation Programs accepting her traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained a crushing injury of the
fingers of the left hand in the performance of duty.
FACTUAL HISTORY
On January 24, 2008 appellant, then a 59-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) asserting that on January 17, 2008 she sustained a crush injury to her right
little finger when it was accidentally slammed in a delivery vehicle door.
In a February 1, 2008 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish her claim. Appellant submitted a January 17, 2008 report

from Dr. Karla L. Dressel, a physician specializing in emergency medicine, which provided a
history of injury and diagnosed an injury to the little finger of the right hand.
By decision dated February 11, 2008, the Office accepted that appellant sustained a
“crushing injury of fingers, left.”1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act that the claim
was filed within the applicable time limitation that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
jointly. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the alleged employment incident.5 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.6
ANALYSIS
The Office accepted that appellant sustained a crush injury to fingers of her left hand.
However, the record demonstrates that appellant injured the little finger of her right hand as was
described by Dr. Dressel. The case will be remanded for the Office to correct the record to
reflect acceptance of a crush injury to the little finger of the right hand. Following this and any
other necessary development, it will issue an appropriate decision in the case.

1

Following issuance of the February 11, 2008 decision, appellant submitted additional medical evidence. The
Board may not consider evidence for the first time on appeal that was not before the Office at the time it issued the
final decision in the case. 20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

2

CONCLUSION
The Board finds that appellant has established that she sustained an injury to the right
little finger in the performance of duty. The case will be remanded to the Office for further
development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 11, 2008 is set aside and the case remanded for further
development consistent with this decision and order.
Issued: March 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE, Houston, TX,
Employer
__________________________________________

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

Docket No. 08-1228
Issued: September 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2008 appellant filed a timely appeal of a February 22, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated December 14,
1994 and the filing of the appeal, the Board lacks jurisdiction to review the merits of his claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On March 11, 1994 appellant, then a 48-year-old special agent, filed an occupational
disease claim (Form CA-2), alleging constant ringing in his ears and a partial hearing loss caused
by his exposure to noise from firearms and explosives during 25 years of federal employment.

On March 11, 1994 he also filed a claim for a schedule award. By letter dated October 5, 1994,
the Office accepted the claim for bilateral sensorineural hearing loss.
On October 25, 1994 Dr. R. Meador, an Office medical adviser, reviewed the case record.
He determined that, in accordance with the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (3rd ed. 1991), appellant had no permanent impairment
due to his accepted employment-related hearing loss. Dr. Meador determined that his hearing
loss was not severe enough to be ratable for schedule award purposes based on a September 22,
1994 audiogram. He checked the box “no” in response to whether hearing aids were authorized.
By decision dated December 14, 1994, the Office denied appellant’s schedule award
claim on the grounds that his accepted bilateral hearing loss was not ratable. It found that the
medical evidence of record did not establish that he would benefit from hearing aids.
In a letter dated June 22, 2006, appellant requested that the Office reopen his hearing loss
claim contending that, since the initial filing of his claim, his hearing loss and the constant
ringing in his ears had progressively worsened.
By letter dated July 17, 2006, the Office advised appellant that, if he disagreed with its
December 14, 1994 decision, he should follow the appeal rights afforded to him by that decision.
It further advised him to file a CA-2 form if he believed that his hearing loss had worsened as
stated.
By letter dated February 10, 2008, appellant requested reconsideration of the Office’s
December 14, 1994 decision. He submitted a February 6, 2008 audiogram performed on behalf
of Dr. Charles J. Ballay, III, a Board-certified otolaryngologist. Testing at 250, 500, 1,000,
2,000, 4,000 and 8,000 cycles per second, revealed hearing thresholds of 10, 15, 15, 20, 50, 75
and 60 decibels in the right ear and 10, 10, 10, 20, 70 and 60 decibels in the left ear, respectively.
The audiologist stated that appellant had long-standing tinnitus and hearing loss. He also had a
history of atrial fibrillation, noise exposure while working in law enforcement and basal cell
nevus. Appellant submitted a claim (Form CA-2a) dated February 10, 2008 alleging that he
sustained a recurrence of disability causally related to his employment-related bilateral hearing
loss.1 He stated that his progressive hearing loss was due to his exposure to firearms and
explosives training while working at the employing establishment.
By decision dated February 22, 2008, the Office found that appellant’s reconsideration
request was dated February 10, 2008, more than one year after the December 19, 1994 decision
and was untimely. It also found that he did not submit evidence to establish clear evidence of
error in the prior decision denying his schedule award claim for hearing loss.

1

Appellant stated that he had retired from the employing establishment.

2

LEGAL PRECEDENT
A claimant may seek an increased schedule award if the evidence establishes that he
sustained an increased impairment at a later date causally related to the employment injury.2
Even if the term reconsideration is used, when a claimant is not attempting to show error in the
prior schedule award decision and submits medical evidence regarding a permanent impairment
at a date subsequent to the prior schedule award decision, it should be considered a claim for an
increased schedule award which is not subject to time limitations.3 A proper claim for increased
hearing loss is not subject to time limitations and is not subject to the clear evidence of error
standard.
ANALYSIS
Appellant disagreed with the Office’s December 14, 1994 decision, denying his claim for
a schedule award and requested “reconsideration” on February 10, 2008 contending that he
experienced an increase in his hearing loss “directly related to his extended exposure to firearm
qualification requirements and explosives training over the course of a 30-year career in federal
law enforcement.” He submitted a February 6, 2008 audiogram in support of his request. On
February 22, 2008 the Office denied his reconsideration request on the grounds that it was not
timely filed and failed to present clear evidence of error.
A similar factual background was presented in the case of Paul R. Reedy.4 In Reedy, the
Office found that the claimant did not have a ratable hearing loss. The claimant submitted letters
stating that his hearing loss had deteriorated and requesting reconsideration. He also submitted
new medical evidence regarding his current condition. Although the Office determined that the
claimant had submitted an untimely reconsideration request, the Board found that he was not
seeking reconsideration of the prior decision, but was claiming an increased hearing loss and was
seeking a new award. The Board remanded the case to the Office for a determination as to
entitlement to a schedule award.
As in Reedy, although appellant used the term “reconsideration” in his February 10, 2008
request, he clearly indicated that he was providing new medical evidence and wanted further
review of his claim of an increased hearing loss resulting from his occupational noise exposure.
He submitted audiogram results from a February 8, 2008 hearing test. Dr. Ballay stated that he
suffered from long-standing tinnitus and hearing loss and he had a history of, among other
things, noise exposure while working in law enforcement. As the Office has not adjusted
appellant’s claimed increased hearing loss, the case will be remanded for further development
consistent with the Office’s procedures.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7b (August 2002).
3

Paul R. Reedy, 45 ECAB 488 (1994); see also Linda T. Brown, 51 ECAB 115 (1999).

4

Paul R. Reddy, supra note 3.

3

CONCLUSION
The Board finds that the Office improperly determined that appellant filed an untimely
request for reconsideration which did not show clear evidence of error. The case is remanded to
the Office to adjudicate appellant’s claim of an increased hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: September 16, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4