United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Lehigh Valley, PA, Employer
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___________________________________________ )
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E.C., Appellant

Appearances:
Jeffrey Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-605
Issued: July 16, 2007

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 December 22, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated December 5, 2006. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
more than a 25 percent permanent impairment of her right upper extremity, for which she
received a schedule award.

FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a July 21, 2006 decision,
the Board found that the case was not in posture for decision.2 The Board found that the second
opinion physician, Dr. Salem, did not explain how he arrived at his rating of impairment. The
Board remanded the case to the Office to further develop the medical evidence of record as
necessary to obtain an opinion in conformance with the A.M.A., Guides as to whether appellant
had any impairment to the right upper extremity causally related to her November 27, 2000
employment injury. The facts and the history contained in the prior appeal are incorporated by
reference.
By letter dated August 21, 2006, the Office referred appellant, together with a statement
of accepted facts and copies of medical records to Dr. Richard J. Mandel, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated September 18, 2006, Dr. Mandel reviewed appellant’s history of injury
and treatment and conducted a physical examination of the upper extremities. He noted that
appellant had multiple surgical scars on the upper extremities but exhibited a normal range of
motion with the exception of the right wrist which had slight restriction. Dr. Mandel determined
that the right wrist had 70 degrees of dorsiflexion, 45 degrees of palmar flexion, 10 degrees of
radial deviation and 25 degrees of ulnar deviation. He indicated that appellant had unrestricted
pronation and supination, a stable distal radio ulnar joint, no hypermobility or piano keying in
the distal ulnar and no subluxation in the extensor carpus ulnari tendon. Dr. Mandel advised that
appellant had tenderness to palpation over the ulnar carpal joint and that her grip strength was
18, 30 and 26 pounds on the right and 42, 48 and 44 pounds on the left. He determined that
appellant’s neurological examination was normal and indicated that appellant’s Tinel’s and
carpal tunnel compression tests were positive on the right and that he had a negative Phalen’s test
and Tinel’s examination over the cubital tunnels and peripheral nerves. Dr. Mandel opined that
appellant was at maximum medical improvement from the accepted injury of sprain and
tendinitis of the right wrist and was capable of working in a limited-duty capacity with
restrictions. He noted that he had utilized the A.M.A., Guides and determined that appellant had
an upper extremity impairment of 24 percent. Appellant’s impairment was based on a 20 percent
rating for decreased strength according to Table 16-343 and a 4 percent rating for decreased wrist
motion pursuant to Figures 16-28 and 16-31.4
In a memorandum dated November 13, 2006, the Office medical adviser applied the
findings of Dr. Mandel to the fifth edition of the A.M.A., Guides. He noted that grip strength
1

Docket No. 06-628 (issued July 21, 2006).

2

The record reflects that the Office accepted appellant’s claim for sprain of the right wrist, extensor carpi ulnaris
tendinitis of the right wrist and steroid injections. The Office also authorized an arthrogram of the right wrist. On
September 19, 2001 the Office authorized arthroscopy of the right wrist with repair of the triangular fibrocartilage
complex.
3

A.M.A., Guides, 509.

4

Id. at 467, 469.

2

testing was not conducted during appellant’s previous evaluations and she did not previously
receive a schedule award for weakness. The Office medical adviser noted that appellant had
slight restriction of motion which included 70 degrees of dorsiflexion, 45 degrees of palmar
flexion, 10 degrees of radial deviation and 25 degrees of ulnar deviation, with normal pronation
and supination. He also noted that appellant was right hand dominant and her grip strength
testing measured 18, 20 and 26 pounds on the right and 42, 48 and 44 pounds on the left. The
Office medical adviser indicated that Dr. Mandel did not explain how he arrived at his strength
calculation but had provided the data needed to make the calculation. He noted that, if the left
side was normal size and the right side abnormal, the formula would be normal strength minus
limited strength over normal strength, which was equal to the strength loss index. The Office
medical adviser utilized the formula and opined that 44 minus 26 is 18, divided by 44, equals 40
strength loss index. He referred to Table 16-345 for upper extremity joint impairments due to
loss of grip strength and opined that a pinch strength loss index of 31 to 60 equaled a 20 percent
upper extremity impairment.
For range of motion of the wrist, the Office medical adviser referred to Figure 16-286 to
calculate impairments due to lack of flexion extension of the wrist joint and noted that 70
degrees of dorsiflexion equaled 0 percent and 45 degrees of palmar flexion rounded off to 40
degrees of palmar flexion equaled a 3 percent impairment of the right upper extremity. He
referred to Figure 16-317 for abnormal radial and ulnar deviations of the wrist joint and
determined that appellant had radial deviation of 10 degrees which was to a 2 percent
impairment and ulnar deviation of 25 degrees which was rounded to 20 degrees and equaled a 2
percent impairment. The Office medical adviser added the values for radial and ulnar deviation
and opined that this was equal to a 4 percent impairment. He referred to the Combined Values
Chart8 and determined that the 20 percent impairment due to loss of grip strength, combined with
the 4 percent impairment due to loss of radial and ulnar deviation and 3 percent for loss of wrist
flexion resulted in a 25 percent impairment. The Office medical adviser noted that appellant
reached maximum medical improvement on September 18, 2006 and that she had previously
received a rating of two percent impairment. He opined that appellant was entitled to an
additional 23 percent impairment based upon loss of grip strength and loss of range of motion.
The Office medical adviser explained that Dr. Mandel made a miscalculation in his range of
motion reading of the pie chart. The increased schedule award was supported as strength
measurements were not documented in the previously submitted evaluation and represented new
information pertaining to appellant’s impairment.
On December 5, 2006 the Office granted appellant a schedule award for an additional 23
percent impairment of the right upper extremity. The award covered a period of 502.32 weeks
from September 21, 2005 to February 5, 2007.

5

Id. at 509.

6

Id. at 467.

7

Id. at 469.

8

Id. at 604.

3

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act9 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.10 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.11 The Act’s implementing regulation has
adopted the A.M.A., Guides as the appropriate standard for evaluating schedule award losses.12
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.13 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.
ANALYSIS
On August 24, 2006 the Office referred appellant for a second opinion examination with
Dr. Mandel, a Board-certified orthopedic surgeon. In a report dated September 18, 2006,
Dr. Mandel noted that he had utilized the A.M.A., Guides and reviewed appellant’s history of
injury and treatment. He conducted an examination and determined that appellant had an upper
extremity impairment of 24 percent which was comprised of a 20 percent rating for decreased
grip strength according to Table 16-3414 and a 4 percent rating for decreased wrist motion
pursuant to Figures 16-28 and 16-31.15 However, Dr. Mandel did not explain how he arrived at
his rating. While he provided grip strength findings, the A.M.A., Guides provides that loss of
strength may be rated separately if such a deficit has not been considered adequately by other
rating methods. The A.M.A., Guides further provides that decreased strength cannot be rated in
the presence of decreased motion, painful conditions, deformities or absence of parts that prevent
effective application of maximum force.16 Dr. Mandel did not provide any explanation as to why
9

5 U.S.C. §§ 8101-8193.

10

5 U.S.C. § 8107.

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

12

20 C.F.R. § 10.404.

13

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
14

See supra note 3.

15

See supra note 4.

16

See A.M.A., Guides 508, section 16.8a.

4

grip strength findings were an appropriate basis for rating impairment in light of the restrictions
set forth in the A.M.A., Guides. Thus, it was improper to utilize grip strength with the loss of
motion.
In a report dated November 13, 2006, the Office medical adviser applied the findings of
Dr. Mandel to the fifth edition of the A.M.A., Guides and determined that appellant was entitled
to a 25 percent impairment of her right upper extremity. He included the findings for grip
strength testing as appellant did not previously receive a schedule award for weakness. The
Office medical adviser determined that appellant had a 40 strength loss index, referred to
Table 16-3417 for upper extremity joint impairments due to loss of grip strength and opined that a
pinch strength loss index of 31 to 60 equaled a 20 percent upper extremity impairment.
However, as noted above, he did not explain why grip strength findings should be utilized.18 The
Board also notes that the A.M.A., Guides do not encourage the use of grip strength as an
impairment rating because strength measurements are functional tests influenced by subjective
factors that are difficult to control and the A.M.A., Guides for the most part are based on
anatomic impairment. The A.M.A., Guides do not assign a large role to such measurements.
Only in rare cases should grip strength be used and only when it represents an impairing factor
that has not been otherwise considered adequately.19
Regarding range of motion for the wrist, the Board finds that the Office medical adviser
properly referred to Figure 16-28,20 to calculate impairments due to lack of flexion extension of
the wrist joint and noted that 70 degrees of dorsiflexion equaled 0 percent and 45 degrees of
palmar flexion rounded off to 40 degrees of palmar flexion equaled a 3 percent impairment of the
right upper extremity. He also referred to Figure 16-31,21 for abnormal radial and ulnar
deviations of the wrist joint and determined that appellant had radial deviation of 10 degrees
which equated to 2 percent impairment and ulnar deviation of 25 degrees which was rounded to
20 degrees and equaled 2 percent impairment. The Office medical adviser added the values for
radial and ulnar deviation and opined that this was equal to four percent impairment. The Board
notes that four percent impairment due to loss of radial and ulnar deviation added with three
percent for loss of wrist flexion results in seven percent impairment. As the schedule award on
appeal is premised on ratings not adequately explained by Dr. Mandel or the Office medical
adviser, the case will be remanded for appropriate development on the issue of impairment to
appellant’s right upper extremity.

17

See supra note 3.

18

See supra note 16.

19

Mary L. Henninger, 52 ECAB 408 (2001).

20

See supra note 6.

21

See supra note 7.

5

On appeal, appellant’s representative requested that the Board instruct the Office to issue
a schedule award to the left upper extremity. However, the record does not contain a decision on
that matter and the issue is not presently before the Board.22
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 5, 2006 be set aside, the case is returned to the Office
for further development to be followed by a de novo decision.
Issued: July 16, 2007
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

22

See 20 C.F.R. § 501.2(c). Counsel may wish to contact the branch of the Office servicing appellant’s claim
regarding any claim for a left arm schedule award.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 19-1392
Issued: February 13, 2020

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 July 29, 2019 appellant filed a timely appeal from a May 15, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On February 15, 2019 appellant, then a 71-year-old facility operations specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome due to
factors of his federal employment. He indicated that he first became aware of his condition and
realized that it was related to factors of his federal employment on November 1, 2018. Appellant
did not stop work.
Appellant provided an August 22, 2016 position description. The position description
noted his duties and responsibilities as using computerized management systems for planning and
estimating, recordkeeping and preventative maintenance scheduling, and facilities inspection
scheduling and recordkeeping, among other duties. The physical demands of the position were
noted as moderate levels of physical exertion, including walking, crouching, sitting, and working
in limited access areas.
In a January 24, 2019 medical report, Jennifer Brown, a family nurse practitioner provided
that appellant experienced numbness in his hands as well as joint wrist pain that began
approximately two to four months prior. She noted that he utilized his fingers a lot while at work
and that his job consisted mostly of typing. In an attached diagnostic report of even date, Dr. Ivan
Robinson, a Board-certified radiologist, noted arthritic changes consistent with arthrosis related to
hemochromatosis in appellant’s x-ray scans of his hands. Based on the diagnostic report,
Ms. Brown noted that she suspected arthritis and that appellant’s hand pain was not due to a workrelated injury.
In January 28, 2019 progress notes from Dr. Nicholas Smerlis, a Board-certified
orthopedic surgeon, he recounted appellant’s history of bilateral hand pain and diagnosed bilateral
carpal tunnel syndrome.
In a development letter dated February 5, 2019, OWCP advised appellant that it required
additional factual and medical evidence to establish his claim. It attached a questionnaire,
requesting that he provide a detailed description of the employment factors he believed contributed
to his condition, including a description of his required duties, relevant dates, and how often he
performed those duties. OWCP also requested that appellant’s attending physician provide a
comprehensive narrative medical report. It afforded appellant 30 days to submit the necessary
evidence.
In a separate development letter of even date, OWCP requested that the employing
establishment provide additional information regarding appellant’s occupational disease claim,
including comments from a knowledgeable supervisor regarding the accuracy of appellant’s
statements, and a copy of appellant’s position description and physical requirements of his
position. It afforded the employing establishment 30 days to respond.

2

No response was received. By decision dated May 15, 2019, OWCP denied appellant’s
occupational disease claim, finding that the evidence of record was insufficient to establish that he
sustained an injury in the performance of duty. As such, it concluded that the requirements had
not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.7 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the identified employment
factors.8
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
an injury in the performance of duty, as alleged.

3

Supra note 2.

4

T.W., Docket No. 18-0788 (issued July 22, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

T.W., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); Gary J. Watling, 52 ECAB 278 (2001); Elaine
Pendleton, 40 ECAB 1143 (1989).
6

T.W., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).

7

20 C.F.R. § 10.5(q).

8

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

9

T.W., supra note 4; J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A. Facey, 55 ECAB 217 (2004).

3

To establish a claim for compensation in an occupational disease claim, an employee must
submit a statement which identifies the factors of employment believed to have caused his or her
condition.10 Appellant did not respond to OWCP’s February 25, 2019 letter requesting that he
provide detailed information concerning the occupational factors he believed contributed to his
condition and respond to its questionnaire.11 As noted, he bears the burden of submitting a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition.12
In support of appellant’s claim, OWCP received a copy of his position description, as well
as a January 24, 2019 medical report from Ms. Brown, a nurse practitioner, noting that appellant
attributed his condition to utilizing his fingers to type at work; however, there is no information
from appellant describing the specific employment-related activities which he believed contributed
to his condition and the amount of time he spent engaging in such activities.13 The Board finds
that this evidence is insufficiently detailed to meet appellant’s burden of proof to establish the
factual basis of his claim.14
The Board finds that, because appellant has not established the factual component of fact
of injury, it is unnecessary to discuss whether he submitted medical evidence sufficient to establish
a medical condition causally related to factors of his federal employment.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of the Board’s 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 that he sustained
an injury in the performance of duty, as alleged.

10

E.V., Docket No. 19-0447 (issued June 25, 2019); H.O., Docket No. 17-1176 (issued November 27, 2018).

11

A.H., Docket No. 19-0566 (issued August 22, 2019); D.C., Docket No. 18-0082 (issued July 12, 2018).

12

Supra note 10.

13

L.W., Docket No. 19-0196 (issued July 2, 2019); D.C., supra note 11.

14

K.M., Docket No. 19-0367 (issued June 26, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 13, 2020
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Houston, TX,
Employer
__________________________________________

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

Docket No. 20-0790
Issued: November 13, 2020

Case Submitted on the Record

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

JURISDICTION
On February 26, 2020 appellant filed a timely appeal from a September 12, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a ratable hearing
loss for schedule award purposes.
FACTUAL HISTORY
On December 19, 2018 appellant, then a 43-year-old special agent, filed an occupational
disease claim (Form CA-2) alleging that he developed hearing loss due to factors of his federal
employment including his time as a firearms and Special Weapons and Tactics (SWAT) instructor.
1

5 U.S.C. § 8101 et seq.

He noted that he first became aware of his condition and realized it was caused or aggravated by
his federal employment on December 19, 2018. Appellant did not stop work.
In a statement attached to the Form CA-2, appellant asserted that his hearing loss was
directly related to firearms, tactical training, and operations while on official duty with the
employing establishment starting in November 2003. During his employment: he participated in
firearms training for 160 hours; he was a primary firearms instructor from 2013 to 2019 for 8 hours
a day, 8 days a year; a firearms instructor for SWAT from 2017 to 2018, 8 hours a day, 5 days a
month; a SWAT team member from 2005 to 2018, 8 hours a day, 5 days a month; a SWAT
breacher from 2008 to 2010, 8 hours a day, 12 days a year; a SWAT sniper from 2015 to 2018, 8
hours a day, 14 days a year; and attended agent firearms training every quarter from 2004 to the
present, 4 days a year, 8 hours a day.
In a development letter dated December 21, 2018, OWCP requested that the employing
establishment provide additional information regarding appellant’s exposure to noise due to factors
of his federal employment, including comments from a knowledgeable supervisor regarding the
accuracy of his statements. It afforded 30 days to respond.
OWCP received audiograms from the employing establishment dated April 4, 2005
through March 25, 2016. It also received a position description for a special agent.
In an undated firearms statement, A.C., an employing establishment human resource
specialist, indicated that appellant attended new agent’s training class from November 2003
through March 2004 and was exposed to noise from a .38 caliber revolver, .45 caliber submachine
gun, 12-gauge shotgun, .30 caliber rifle, and a federal gas gun. Appellant fired approximately
5,500 rounds of ammunition during training. From November 2003 to the present time, he
participated in firearms training and fired at least 18,750 rounds of ammunition during this period.
A.C. further noted that mandatory firearms training for special agents occurred eight times
annually with four sessions held outdoors and four sessions held indoors. The actual firing on the
range consisted of approximately five hours per outdoor session and one hour per indoor session.
A total of 1,040 rounds were fired during the sessions from 1989 to 1992 and 1,250 rounds per
session from 1993 to the present. A.C. advised that since 1974 the use of ear guard headsets has
been mandatory.
Appellant submitted audiograms from Susan Hyman, an audiologist, dated January 2 to
July 2, 2018, which revealed mild constructive hearing loss in the left ear and normal hearing in
the right ear.
On January 3, 2019 appellant filed a claim for a schedule award (Form CA-7).2

2

On March 21, 2019 appellant was treated by Dr. Christian A. Corbitt, a Board-certified otolaryngologist, for
hearing loss and chronic sinus headaches. He diagnosed Eustachian tube dysfunction, otalgia left, turbinate
hypertrophy, postnasal drip, left ear tinnitus aurium, headache, nasal congestion, and asymmetrical hearing loss of the
left ear. A magnetic resonance imaging (MRI) scan of the brain dated March 11, 2019, revealed no acute intracranial
abnormality, bilateral uncomplicated mastoiditis, and mild mucosal thickening. A computerized tomography scan of
the maxillofacial region dated March 21, 2019 revealed chronic rhinosinusitis and bilateral inferior turbinate
hypertrophy.

2

In an audiometric examination dated March 28, 2019, Brooke Johnson, a registered nurse
for the employing establishment, recorded audiometric findings at the frequency levels of 500,
1,000, 2,000, and 3,000 Hertz (Hz) of losses for the right ear of 15, 25, 10, and 10 decibels (dBs)
and for the left ear of 25, 20, 25, 25, and 25 dBs, respectively. In a letter dated April 19, 2019, the
employing establishment informed appellant that the results of his last audiometric test performed
on March 28, 2019 indicated that his left ear had sustained a standard threshold shift in hearing
ability. It explained its responsibility to inform him of the hearing loss and to provide him with
effective hearing conservation methods such as personal protective equipment.
On May 17, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Donna L. Breen, a Board-certified otolaryngologist serving
as a second opinion physician, regarding the nature, extent, and causal relationship of his hearing
loss.
In her June 21, 2019 otologic evaluation report, Dr. Breen reviewed the SOAF, history of
injury, and the medical evidence of record. Testing at the frequencies of 500, 1,000, 2,000, and
3,000 Hz revealed losses at 10, 15, 15, and 10 dBs for the right ear and 15, 15, 20, and 25 dBs for
the left ear, respectively. Dr. Breen discussed appellant’s hearing loss and opined that the
industrial noise exposure was the primary factor causing his condition. She advised that appellant
had high frequency hearing loss in the left ear. Dr. Breen noted that the findings show more decline
in high frequency range at 3,000 to 6,000 Hz in the left ear. She indicated that appellant had tubes
placed in his ears as a child and currently has a wood working hobby, but wears protective ear
muffs. Dr. Breen noted examination findings of normal canals and eardrums. Appellant reported
chronic high-pitched ringing in his left ear, however, this did not interfere with his daily activities.
Dr. Breen diagnosed left-sided high-frequency sensorineural hearing loss and tinnitus due to noise
exposure encountered in appellant’s federal civilian employment. She recommended three percent
impairment for tinnitus. Dr. Breen recommended continued hearing protection when exposed to
gunfire.
On August 23, 2019 OWCP referred the medical record and SOAF to Dr. Jeffrey Israel, an
OWCP district medical adviser (DMA) and Board-certified otolaryngologist, to determine the
extent of appellant’s hearing loss and permanent impairment due to his employment-related noise
exposure. On August 26, 2019 Dr. Israel reviewed Dr. Breen’s examination report and agreed that
appellant’s sensorineural hearing loss was due, at least in part, to noise-induced work-related
acoustic trauma. He applied the audiometric data to OWCP’s standard for evaluating hearing loss
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides)3 and determined that appellant sustained a right
monaural loss of zero percent, a left monaural loss of zero percent and a binaural hearing loss of
zero percent. Dr. Israel averaged appellant’s right ear hearing levels of 10, 15, 15, and 10 dBs at
500, 1,000, 2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four levels then
dividing the sum by four, which equaled 12.5. After subtracting out a 25 dB fence, he multiplied
the remaining zero balance by 1.5 to calculate a zero percent right ear monaural hearing loss.
Dr. Israel then averaged appellant’s left ear hearing levels of 15, 15, 20 and 25 dBs at 500, 1,000,
2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four levels then dividing the
sum by four, which equaled 18.75. After subtracting out a 25 dB fence, he multiplied the
3

(6th ed. 2009).

3

remaining five balance by 1.5 to calculate a zero percent left ear monaural hearing loss. Dr. Israel
then calculated zero percent binaural hearing loss by multiplying the right ear loss of zero percent
by five, adding the zero percent left ear loss, and dividing this sum by six. He recommended yearly
audiograms, use of noise protection, and authorization for left side hearing aid with tinnitus
masking capability. Dr. Israel disagreed with Dr. Breen’s three percent tinnitus award and opined
that a tinnitus award cannot be rendered when there is a zero percent binaural hearing impairment.
He determined that appellant had reached maximum medical improvement (MMI) on June 11,
2019, the date of the latest audiogram in the records and the one used by the Dr. Breen to determine
the current hearing impairment.
By decision dated September 11, 2019, OWCP accepted appellant’s claim for
sensorineural hearing loss, unilateral, left ear with unrestricted hearing on the contralateral side
and tinnitus of the left ear.
By decision dated September 12, 2019, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish that his accepted hearing loss
condition was severe enough to be considered ratable and as such, no tinnitus award could be
rendered.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 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. 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 sound 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. The sixth edition of the
A.M.A., Guides6 has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.7
OWCP 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 Hz, the losses at each
frequency are averaged.8 Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides
points out, losses below 25 dBs result in no impairment in the ability to hear everyday speech
under everyday conditions.9 The remaining amount is multiplied by a factor of 1.5 to arrive at the

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107.

7

V.M., Docket No. 18-1800 (issued April 23, 2019); see J.W., Docket No. 17-1339 (issued August 21, 2018).

8

A.M.A., Guides 250.

9

Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

4

percentage of monaural hearing loss.10 The binaural loss of hearing is determined by calculating
the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by five, then
added to the greater loss and the total is divided by six to arrive at the amount of the binaural
hearing loss.11 The Board has concurred in OWCP’s adoption of this standard for evaluating
hearing loss.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a ratable hearing
loss for schedule award purposes.
OWCP properly referred appellant to Dr. Breen for a second opinion examination to
evaluate his hearing loss. In her June 21, 2019 report, Dr. Breen discussed appellant’s work
history and opined that the industrial noise exposure was the primary factor causing his condition.
Dr. Breen diagnosed left-sided high frequency sensorineural hearing loss and left-sided tinnitus
caused by the noise exposure in his workplace.
In its September 11, 2019 decision, OWCP accepted the claim for sensorineural hearing
loss, unilateral, left ear with unrestricted hearing on the contralateral side and tinnitus of the left
ear.
On August 26, 2019 the DMA reviewed Dr. Breen’s report and determined that appellant
had zero percent monaural hearing loss in each ear. Dr. Israel related that testing at the frequencies
of 500, 1,000, 2,000, and 3,000 Hz revealed losses at 10, 15, 15, and 10 dBs for the right ear,
respectively; and 15, 15, 20, and 25 dBs for the left ear, respectively. He added appellant’s right
ear hearing levels and divided by four, which totaled 12.5. The decibel losses for the left ear were
totaled at 75 and divided by 4 to obtain an average hearing loss of 18.75. After subtracting the 25
decibel fence, both the right and left ear losses were reduced to zero. When multiplied by 1.5, the
resulting monaural hearing loss in each ear was zero percent. The Board finds that the DMA
properly concluded that appellant did not have ratable permanent impairment of his hearing
warranting a schedule award. Although appellant has accepted employment-related hearing loss,
it is not sufficiently severe to be ratable for schedule award purposes.13
The Board has held that, in the absence of ratable hearing loss, a schedule award for tinnitus
is not allowable pursuant to the A.M.A., Guides.14 Accordingly, as appellant does not have ratable
hearing loss, the Board finds that he is not entitled to a schedule award for tinnitus.
On appeal appellant asserts that he sustained permanent and measureable hearing loss and
should be compensated for that loss. As explained above, OWCP accepted that appellant sustained
sensorineural hearing loss in the left ear. It evaluates industrial hearing loss in accordance with
10

Id.

11

Id.

12

V.M., supra note 7.

13

W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

14

Id.

5

the A.M.A., Guides and, when applied to appellant’s audiogram findings, his hearing loss was not
ratable.15
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 a ratable hearing
loss for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

Supra note 8.

6


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

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

Docket No. 20-0136
Issued: August 5, 2021

Case Submitted on the Record

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

JURISDICTION
On October 22, 2019 appellant, through counsel, filed a timely appeal from a
September 19, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 19, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing December 15, 2016 causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On December 4, 2015 appellant, then a 44-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained impingement syndrome, rotator cuff
tendinitis, calcific tendinitis, and bursitis of the right shoulder caused by factors of her federal
employment, including repetitive activities while handling mail and heavy parcels during the prior
15 years. She stopped work on November 30, 2015.
On October 12, 2016 OWCP accepted appellant’s claim for the condition of calcific
tendinitis of the right shoulder.
In a November 14, 2016 report, Dr. John E. Samani, a Board-certified orthopedic surgeon,
noted a one-year history of right shoulder pain and constant clicking. On examination, he found
severely restricted right shoulder motion in all planes, positive Neer and Speed’s tests, and guarded
Hawkins test. Dr. Samani obtained x-rays, which were within normal limits for age. He diagnosed
right shoulder pain and noted work restrictions against lifting more than 10 pounds frequently or
20 pounds occasionally.
On December 23, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming
disability commencing December 14, 2016. She asserted that her right shoulder symptoms
increased in late November 2016 due to working 12-hour days with heavy mail and parcel volume.
Appellant stopped work on December 15, 2016 and claimed wage-loss compensation (Form
CA-7) for temporary total disability commencing December 15, 2016.
In support of her claim, appellant submitted a December 14, 2016 report by Dr. Mark
Karchon, an osteopathic physician Board-certified in family practice, noting a worsening of her
right shoulder pain as she had been “doing a lot more at work” carrying packages and mail. On
examination, Dr. Karchon observed extremely limited right shoulder range of motion. He held
appellant off work for four weeks pending reevaluation.
In a development letter to appellant dated January 12, 2017, OWCP provided the definition
of a recurrence of disability. It advised appellant of the type of factual and medical evidence
necessary to establish her claim, provided a questionnaire for her completion, and afforded her 30
days to submit additional evidence.
In a January 16, 2017 report, Dr. Karchon noted that a January 11, 2017 magnetic
resonance imaging (MRI) scan demonstrated swelling and inflammation in several shoulder
4

Order Remanding Case, Docket No. 18-1743 (issued August 15, 2019).

2

tendons, with severe arthritis and spurring of the acromioclavicular (AC) joint impacting the
supraspinatus tendon beneath it, causing appellant considerable pain.5 He held her off work for
three weeks pending additional evaluation.
In a report dated January 23, 2017, Dr. Samani held appellant off work indefinitely pending
surgery. He prescribed a rigid immobilization arm brace.
On February 28, 2017 Dr. Samani performed OWCP-authorized right shoulder
arthroscopic decompression, extensive debridement of glenohumeral joint with debridement of
labrum and partial rotator cuff tears, partial claviculectomy performed through a small anterior
incision, distal 8 millimeter removed. He prescribed physical therapy.6 Dr. Samani held appellant
off work through May 6, 2017.
In a March 29, 2017 report, Dr. Thomas Perkins, a Board-certified orthopedic surgeon,
prescribed physical therapy. He diagnosed status post right shoulder arthroscopy with
decompression and partial claviculectomy.
By decision dated May 26, 2017, OWCP denied appellant’s claim for recurrence of
disability. It found that the evidence was insufficient to establish that her current right shoulder
conditions were causally related to the accepted employment injury.
On May 1, 2018 appellant, through counsel, requested reconsideration. Appellant provided
a statement summarizing her history of injury and treatment.
In a February 9, 2017 report, Dr. Karchon explained that he had held appellant off from
work from December 14, 2016 through January 16, 2017 due to severe shoulder pain.
OWCP received a May 15, 2017 functional capacity evaluation signed by Matthew
Mallman, an occupational therapist.
In a June 9, 2017 report, Dr. Samani prescribed a work conditioning program. He returned
appellant to full-duty work effective July 1, 2017.
Dr. Karchon opined, in a letter dated February 28, 2018, that appellant’s recurring right
shoulder problems were “made worse by the repetitive motion of lifting [appellant’s] arm up and
over in order for her to deliver mail as well as carrying and lifting packages to the door.” These
repetitive motions caused chronic inflammation by causing the calcium deposits in the tendon to
continuously rub on the soft tissue muscle and tendon, leading to inflammation, more calcium
deposits, and further disability.
In a February 9, 2017 narrative report, Dr. Samani described the history of the employment
injury and the requirements of her duties as a rural mail carrier. He further noted his findings on
physical examination and the results of diagnostic testing including a pathophysiological analysis
5

A January 11, 2017 right shoulder MRI scan demonstrated bursal fraying and focal tendinosis of the anterior
supraspinatus tendon, sever AC joint osteoarthrosis with periarticular edema and prominent subacromial spurring,
impingement, mild tendinosis of the long head of the biceps tendon,
6

Appellant participated in physical therapy treatment from March 7 to April 21, 2017.

3

of the cause of the accepted injury. Dr. Samani explained the necessity of the indicated right
shoulder surgery as a result of her job duties. He advised that appellant remain off work until she
is treated with surgery for the right shoulder.
By decision dated July 30, 2018, OWCP denied modification of its prior decision finding
that the evidence did not contain a well-rationalized opinion from a qualified physician explaining
whether the accepted condition had worsened such that appellant was disabled from work
commencing December 15, 2016. Appellant appealed to the Board.
By order issued August 15, 2019,7 the Board set aside the July 30, 2018 decision and
remanded the case for full consideration of all evidence of record. The Board noted that OWCP
had authorized the February 28, 2017 right shoulder arthroscopy, but had not paid appellant wageloss compensation for any period of postsurgical recuperation.
By decision dated September 19, 2019, OWCP modified the May 26, 2017 decision to the
extent it “approved” disability related to OWCP’s authorized February 28, 2017 surgery.
However, appellant’s claim for a recurrence of disability for the period December 15, 2016
through February 27, 2017 remained denied as Dr. Karchon’s December 14, 2017 report indicated
that new work exposures had aggravated the accepted right shoulder condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness, without an intervening injury or new exposure to the work environment that
caused the illness.8 Recurrence of disability also means an inability to work that takes place when
a light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.9 Absent
a change or withdrawal of a light-duty assignment, a recurrence of disability following a return to
light duty may be established by showing a change in the nature and extent of the injury-related
condition such that the employee could no longer perform the light-duty assignment.10
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.11 This burden includes the necessity of furnishing evidence from a qualified
7

Supra note 4.

8

20 C.F.R. § 10.5(x).

9

Id.

10

G.L., Docket No. 16-1542 (issued August 25, 2017); Theresa L. Andrews, 55 ECAB 719, 722 (2004). See also
Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
11

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).

4

physician who concludes that the condition is causally related to the employment injury. 12 The
physician’s opinion must be based on a complete and accurate factual and medical history and it
must be supported by sound medical reasoning.13 Where no such rationale is present, the medical
evidence is of diminished probative value.14
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.15 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.16
ANALYSIS
The Board finds that the case is not in posture for decision.
Dr. Samani provided reports holding appellant off work commencing January 23, 2017
pending authorized right shoulder arthroscopy, performed on February 28, 2017. He also
prescribed a rigid immobilization brace for the right arm to be worn prior to the surgery. In a
February 9, 2017 narrative report, Dr. Samani described the history injury and the requirements of
appellant’s duties as a rural mail carrier. He explained the necessity of the indicated right shoulder
surgery as a result of her job duties and advised that appellant remain off work until she is treated
with surgery for the right shoulder.
The Board finds that, while Dr. Samani’s January 23 and February 9, 2017 reports are not
fully rationalized, he was consistent in opining that appellant’s employment injury caused
disability from work.17 Although the reports are insufficient to meet appellant’s burden of proof
to establish her claim for compensation, they raise an uncontroverted inference between her current
condition and resultant disability from work and the accepted employment injury, and thus, it is
sufficient to require OWCP to further develop the medical evidence.18
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.19 While the claimant has the burden of proof to establish entitlement
12

H.T., Docket No. 17-0209 (issued February 8, 2019); S.S., 59 ECAB 315, 218-19 (2008).

13

Id.

14
G.L., Docket No. 19-0898 (issued December 5, 2019); E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
15

See B.D., Docket No. 18-0426 (issued July 17, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005).

16

Id., Fereideoon Kharabi, 52 ECAB 291 (2001).

17

L.B., Docket No. 19-1621 (issued November 5, 2020).

18

Id.; John J. Carlone, 41 ECAB 354, 260 (1989).

19

L.B., supra note 17; Vanessa Young, 56 ECAB 575 (2004).

5

to compensation, OWCP shares the responsibility in the development of the evidence and to see
that justice is done.20 Thus, the Board will remand the case to OWCP.
On remand OWCP shall prepare a statement of accepted facts setting forth the accepted
employment injury and authorized surgery, and refer appellant to a second opinion physician in
the appropriate field of medicine for an examination and a rationalized medical opinion as to
whether her claimed recurrence of disability is causally related to the accepted December 4, 2015
employment injury. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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

Docket No. 17-1992
Issued: September 12, 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 September 25, 2017 appellant filed a timely appeal from a July 6, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 20, 2017; and (2) whether appellant has
met her burden of proof to establish any continuing disability or medical residuals on or after
March 20, 2017 causally related to her January 20, 1993 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 21, 1993 appellant, then a 33-year-old ultrasound technician, filed a traumatic
injury claim (Form CA-1) alleging that, on January 20, 1993, she injured her right shoulder, and
her thoracic and cervical spine while transferring a patient from his bed to a wheelchair. By
decision dated February 11, 1993, OWCP accepted her claim for right shoulder strain, cervical
radiculitis, and lumbar sprain.
Appellant filed a notice of recurrence of disability (Form CA-2a) on July 5, 1994 alleging
that she sustained a recurrence of low back pain, leg pain, and neck pain causally related to her
January 20, 1993 employment injury on March 8, 1994. She stopped work on April 3, 1994.
Appellant returned to work and filed a second notice of recurrence on July 19, 1994. OWCP
accepted her recurrences of disability on July 17, 1995 and she received wage-loss compensation
for all periods of temporary total disability.
The employing establishment provided appellant with a job offer in November 1996.
Appellant declined the job offer on November 6, 1996, claiming that she was totally disabled from
work. In a letter dated January 9, 1997, OWCP informed her that the job offered by the employing
establishment was suitable work under 5 U.S.C. § 8106(c), informed her of the consequences of
this penalty provision, and afforded her 30 days to accept the position or provide her reasons for
refusal. By decision dated March 11, 1997, it terminated appellant’s wage-loss compensation and
entitlement to schedule award benefits.
Appellant appealed the March 11, 1997 decision to the Board. In its April 22, 1999
decision,3 the Board reversed the March 11, 1997 OWCP decision, finding that OWCP failed to
meet its burden of proof to terminate appellant’s wage-loss compensation and entitlement to
schedule award benefits, effective March 11, 1997. Following the Board’s April 22, 1999
decision, OWCP reentered appellant on the periodic rolls, effective March 30, 1997.
On August 12, 1999 appellant underwent electromyogram (EMG) and nerve conduction
velocity (NCV) studies which demonstrated chronic left C6, right L3-4, and right L5-S1
radiculopathy. Beginning on August 30, 1999 and continuing through March 25, 2008, appellant’s
attending physician, Dr. Richard A. Pearl, a neurologist, provided a series of medical reports
diagnosing chronic cervical and lumbosacral radiculitis and radiculopathy as well as chronic
cervical and lumbosacral sprains due to her accepted January 20, 1993 employment injury. He
opined that appellant was totally disabled and that appellant’s June 18, 2001 magnetic resonance
imaging (MRI) scan was unremarkable.

2

Docket No. 97-1711 (issued April 22, 1999).

3

Id.

2

On April 27, 2009 and continuing through December 10, 2013, Dr. Pearl repeated his
diagnoses of cervical and lumbosacral radiculopathy and his finding of total disability. He
described appellant’s January 20, 1993 employment injury and her ongoing conditions of chronic
cervical and lumbosacral radiculopathy. Dr. Pearl opined that appellant was totally disabled from
work and noted that she could potentially become worse and develop a degenerative condition of
the spine.
In a letter dated December 27, 2013, OWCP referred appellant, a SOAF, and list of
questions, for a second opinion evaluation with Dr. Leon Sultan, a Board-certified orthopedic
surgeon to determine the status of appellant’s accepted conditions and disability. In his January 14,
2014 report, Dr. Sultan reviewed the SOAF and discussed appellant’s history of injury. He
performed a physical examination and found that appellant had no findings on physical
examination in her cervical spine, right shoulder, or lumbar spine. Dr. Sultan concluded that
appellant had no objective work-related disability. He completed a work restriction evaluation
(Form OWCP-5) and found that appellant could work eight hours a day without restrictions.
On June 17, 2014 Dr. Pearl completed a narrative report and found that appellant had
normal motor examination, gait, and sensory examination. He found pain on palpation of the
paraspinal muscles in the cervical lumbosacral region. Dr. Pearl noted that a cervical spine MRI
scan demonstrated a herniated disc at C5-6 and a bulging disc at C4-5. He diagnosed chronic
cervical and lumbosacral radiculopathy. Dr. Pearl opined that appellant’s condition was causally
related to her accepted employment injury and found that she was totally disabled. He continued
to support these diagnoses from September 2014 through July 1, 2015.
On August 5, 2014 OWCP found a conflict of medical opinion evidence between Dr. Pearl
and Dr. Sultan regarding appellant’s ongoing conditions and disability. In a letter of even date, it
referred appellant, a SOAF, and a list of questions for an impartial medical examination with
Dr. Richard Parker, a Board-certified orthopedic surgeon.
In a letter dated July 28, 2015, the employing establishment noted that appellant was
scheduled for an impartial medical examination on August 20, 2014, but that there was no evidence
in the file that this examination was ever performed. On November 5, 2015 OWCP responded to
the employing establishment and alleged, “Due to a computer error the appointment has not been
scheduled.” However, the report of Dr. Parker’s independent medical August 20, 2014
examination was not received by OWCP until approximately one year later, on
November 10, 2015.
In that report dated August 20, 2014, Dr. Parker described appellant’s history of injury,
reviewed her medical records and diagnostic studies, and also performed a physical examination.
He diagnosed chronic cervical and lumbar derangement and myofascial strain, as well as disc
herniations in the cervical and lumbar spine. Dr. Parker opined that appellant could return to light
duty with no lifting, pushing, or pulling in excess of 15 pounds. He concluded that appellant could
perform a sedentary job if given the opportunity to get up every 30 minutes for 5 minutes to walk
and stretch. Dr. Parker opined that there was a direct causal relationship between appellant’s
cervical and lumbar spine conditions and the January 20, 1993 employment injury.

3

OWCP prepared a new SOAF on December 7, 2015. On December 9, 2015 it referred
appellant, the December 7, 2015 SOAF, and a list of questions for an additional second opinion
evaluation examination with Dr. Sultan. In the December 7, 2015 SOAF, OWCP indicated that
appellant was “under the care of” Dr. Pearl and of Dr. Parker, who was not identified as an IME.
It listed appellant’s other second opinion examinations separately.
In his January 15, 2016 report, Dr. Sultan noted reviewing additional reports from Dr. Pearl
and Dr. Parker’s August 20, 2014 “independent orthopedic examination.” He further noted that in
his prior examination on January 14, 2014 he found normal physical findings with respect to her
cervical and thoracolumbar spine as well as her right shoulder. Dr. Sultan performed an additional
physical examination and found no muscle spasm in appellant’s neck or back, no trigger points,
and symmetrical reflexes with normal sensory testing. With regard to appellant’s right shoulder,
he noted that range of motion was equal with the left and that impingement signs were negative.
Dr. Sultan concluded that appellant’s accepted conditions had resolved and that appellant had no
ongoing orthopedic impairments due to these conditions requiring medical treatment. He further
found no ongoing disability due to the January 20, 1993 employment injury. Dr. Sultan also found
that appellant could return to her date-of-injury position without residuals.
Dr. Pearl, on May 3, 2016, opined that appellant had loss of range of motion of the cervical
and lumbar spine as well as pain on palpation of the paraspinal muscles. He diagnosed cervical
and lumbosacral radiculopathy and opined that these conditions were causally related to her
employment injury. Dr. Pearl found that appellant could not return to work in her date-of-injury
position.
In a May 6, 2016 note, the employing establishment offered to return appellant to her dateof-injury position. On May 18, 2016 Dr. Pearl opined that based on his correlation of appellant’s
history, physical, and abnormal laboratory data, she was unable to return to work. He diagnosed
the additional condition of chronic pain syndrome and found that appellant was totally disabled.
OWCP, on May 31, 2016, found a conflict of medical opinion evidence between Drs. Pearl
and Sultan on the issue of whether appellant had any continuing disability or medical residuals as
a result of her accepted employment injuries. In a letter dated July 1, 2016, it referred appellant,
the December 7, 2015 SOAF, and a list of questions for an additional impartial medical
examination with Dr. Bradley White, a Board-certified orthopedic surgeon.
Dr. White completed a report on August 22, 2016 reviewing appellant’s history of injury
and medical history.4 He performed a physical examination and found no tenderness of the
cervical spine, no limitation of cervical motion, and only mild discomfort at extremes of lateral
bending, extension, and rotation. Appellant presented a normal neurological examination of the
upper extremities with symmetrical reflexes and no clinical evidence of cervical radiculopathy.
Appellant’s shoulders did not demonstrate muscle wasting, swelling, or deformity. Dr. White
found no clinical signs of impingement or instability in either shoulder. In regard to appellant’s
thoracic and lumbosacral spines, he found full range of motion with mild discomfort at the
extremes of extension and lateral bending. Dr. White’s neurological examination of appellant’s
4
Dr. White did not mention Dr. Parker’s impartial medical examination, but referred to appellant’s second opinion
evaluations as “orthopedic IME report[s].”

4

lower extremities was normal with no lower extremity radicular signs or symptoms. He noted that
he agreed with Dr. Sultan and found that appellant’s accepted conditions had resolved. Dr. White
opined that there was no indication for further medical treatment due to these conditions. He
concluded that there was no evidence of any ongoing causally-related disability and found that
appellant should be able to return full time to her date-of-injury position, and again noted that he
agreed with Dr. Sultan. However, Dr. White added, “The only modification that I would suggest
in her work environment would be in her reliance in available hospital staff charged with the job
of transferring patients and seek their assistance in patient transfers.” He completed the work
capacity evaluation (OWCP-5) and indicated that appellant could perform her usual job without
restriction for eight hours a day.
In a letter dated September 27, 2016, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. White’s August 22, 2016 report. It afforded
appellant 30 days for a response if she disagreed with the proposed termination.
Dr. Pearl completed a report on October 6, 2016 and disagreed with Dr. White’s findings
and conclusions. He noted that appellant had pain in her neck and back to her extremities and
found Dr. White’s range of motion determinations to be inconsistent with his findings. Dr. Pearl
noted that Dr. White recommended work modification and home exercises. He further opined that
appellant’s accepted conditions should include chronic pain syndrome which neither Dr. Sultan
nor Dr. White addressed. Dr. Pearl continued to submit treatment notes from October 6, 2016
through January 31, 2017 diagnosing cervical radiculitis and lumbosacral radiculopathy.
By decision dated March 21, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective March 20, 2017. It found that Dr. White was entitled to the special
weight of the medical evidence and established that appellant had no ongoing disability or medical
residuals.
In a letter dated March 30, 2017, appellant disagreed with OWCP’s March 21, 2017
termination decision and asserted that she remained totally disabled.
She requested
reconsideration on April 4, 2017 and submitted a report from Dr. Pearl dated March 29, 2017 in
which he opined that appellant was totally disabled due to loss of range of motion of the cervical
spine as well as pain on palpation of the paraspinal muscles in the cervical and lumbosacral spine.
Dr. Pearl found that appellant had ongoing neurological complaints and objective evidence of
progressive cervical spine disease as well as chronic pain syndrome with depressive elements.
Appellant also submitted treatment notes from Dr. Pearl dated March 29, and May 31, 2017.
By decision dated July 6, 2017, OWCP denied modification of its March 21, 2017
termination decision and found that appellant had not established continuing disability and medical
residuals on or after that date.

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.6
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination.10 This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.11 When there exists opposing reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 20, 2017.

5
See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
7

See R.P., supra note 5; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See R.P., supra note 5; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No.
08-1822 (issued August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
9
See R.P., supra note 5; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
10

5 U.S.C. § 8123(a); see R.P., supra note 5; R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No.
08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
11

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

12

See R.P., supra note 5; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

OWCP accepted that appellant sustained right shoulder strain, cervical radiculitis, and
lumbar sprain due to her January 20, 1993 employment injury. It properly determined that a
conflict arose between Dr. Pearl, appellant’s attending physician, who found that she was totally
disabled from work due to medical residuals of her accepted condition, and Dr. Sultan, an OWCP
second opinion physician, who found that she had no disability or medical residuals due to her
accepted employment injuries. On July 1, 2016 OWCP referred appellant to Dr. White for an
impartial medical examination. By decision dated March 20, 2017, it terminated appellant’s wageloss compensation and medical benefits, effective March 20, 2017 based on the special weight
accorded Dr. White’s opinion as the impartial medical examiner.
Where there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.13 The Board finds that the opinion of Dr. White, a
Board-certified orthopedic surgeon, selected to resolve the conflict in opinion is based on a proper
factual14 and medical background and is well rationalized. Dr. White accurately summarized the
relevant medical evidence, provided detailed findings on examination, and reached conclusions
about appellant’s condition which comported with his findings.15 He found appellant had a normal
neurological examination of the upper extremities with symmetrical reflexes and no clinical
evidence of cervical radiculopathy. Dr. White found no clinical signs of impingement or
instability in either shoulder. His neurological examination of appellant’s lower extremities was
also normal with no lower extremity radicular signs or symptoms. Dr. White found that appellant’s
accepted conditions had resolved. He provided rationale for his opinion by noting that appellant
had no further objective findings of her accepted conditions. As his report is detailed, wellrationalized, and based on proper factual background, his opinion is entitled to the special weight
accorded an IME.16
The remaining evidence submitted prior to OWCP’s termination of appellant’s
compensation is insufficient to show that she had disability or residuals of her accepted work
injury. Dr. Pearl completed a report on October 6, 2016 and disagreed with Dr. White’s findings
and conclusions. He further opined that appellant’s accepted conditions should include chronic
pain syndrome and continued to diagnose cervical radiculitis and lumbosacral radiculopathy.
Dr. Pearl did not, however, provide a rationalized explanation regarding the medical findings and
reasoning for his opinion. Furthermore, as Dr. Pearl was on one side of the conflict that Dr. White
resolved, the additional unrationalized report from Dr. Pearl is insufficient to overcome the weight
accorded Dr. White’s report as the impartial medical specialist or to create a new conflict with it.17

13

S.F., Docket No. 17-1427 (issued May 16, 2018).

14
The Board finds that the failure of the SOAF to identify Dr. Parker as a previous impartial medical examiner was
harmless error.
15

S.F., supra note 13.

16

S.F., supra note 13; Kathryn E. Demarsh, 56 ECAB 677 (2005).

17

S.F., supra note 13; Dorothy Sidwell, 41 ECAB 857, 874 (1990).

7

LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates the claimant’s compensation benefits, the burden shifts
to the claimant to establish that he or she has continuing disability after that date related to his or
her accepted injury.18 To establish causal relationship between any attendant disability claimed
and the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such causal relationship.19 Causal
relationship is a medical issue and the medical evidence required to establish a causal relationship
is rationalized medical evidence.20
ANALYSIS -- ISSUE 2
Following the termination of her wage-loss compensation and medical benefits, appellant
disagreed with OWCP’s March 21, 2017 termination decision and requested reconsideration on
April 4, 2017. In support of her request, appellant submitted a report from Dr. Pearl dated
March 29, 2017 in which he opined that appellant was totally disabled due to loss of range of
motion of the cervical spine as well as pain on palpation of the paraspinal muscles in the cervical
and lumbosacral spine. Dr. Pearl found that appellant had ongoing neurological complaints and
objective evidence of progressive cervical spine disease as well as chronic pain syndrome with
depressive elements.
The Board finds that Dr. Pearls’ March 29, 2017 report is similar to his October 6, 2016
report. Dr. Pearl again opined that appellant’s accepted conditions should include chronic pain
syndrome and cervical and lumbosacral pain on palpation. He did not, however, provide objective
findings on examination or a rationalized explanation regarding any objective medical findings
and his diagnoses. Furthermore, as Dr. Pearl was on one side of the conflict that Dr. White
resolved, the additional unrationalized report from Dr. Pearl is again insufficient to overcome the
weight accorded Dr. White’s report as the impartial medical specialist or to create a new conflict
with his opinion.21
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 20, 2017. The Board further finds that

18

S.F., supra note 13; Manuel Gill, 52 ECAB 282 (2001).

19

Id.

20

C.W., Docket No. 12-1211 (issued November 15, 2012); Darlene R. Kennedy, 57 ECAB 414 (2006).

21

Supra note 17.

8

appellant has not established continued employment-related disability or residuals after
March 20, 2017.
ORDER
IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 12, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-88
Issued: March 28, 2013

Case Submitted on the Record

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

JURISDICTION
On October 16, 2012 appellant, through his attorney, filed a timely appeal from a
September 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request to change treating
physicians.
FACTUAL HISTORY
On August 24, 2007 appellant, then a 38-year-old revenue officer, filed an occupational
disease claim alleging that he sustained carpal tunnel syndrome as a result of repetitive typing.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for bilateral carpal tunnel syndrome. It subsequently expanded
acceptance to include right causalgia.
On November 21, 2007 Dr. Hongshik Han, a Board-certified plastic surgeon, performed a
right carpal tunnel release. Appellant stopped work on November 21, 2007. In a report dated
January 2, 20008, Dr. Frank L. Cantrell, a Board-certified neurologist, recommended physical
therapy and medication to treat his right hand to prevent further development of complex
regional pain syndrome.
On May 1, 2008 Dr. Han referred appellant to Dr. Robert G. Salazar, a Board-certified
anesthesiologist, for pain management. In a report dated July 11, 2008, Dr. Salazar diagnosed
reflex sympathetic dystrophy and carpal tunnel syndrome. He recommended an intrathecal
opioid trial.
On August 1, 2008 OWCP referred appellant to Dr. Alice M. Martinson, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated August 27,
2008, Dr. Martinson diagnosed causalgia of the right hand due to a median nerve injury. She
recommended a clonidine patch and stellate ganglion block and noted that an intrathecal opioid
block was a “last resort-type treatment.” Dr. Martinson stated:
“In light of the severity of his symptoms, the delay in institution of appropriate
treatment and [appellant’s] lack of confidence in the physicians who have
managed him so far, I would strongly urge that he be referred for evaluation to a
neurologist or pain management specialist at an academic center who has special
expertise in the management of these kinds of clinical problems.”
By letter dated September 11, 2008, OWCP requested that Dr. Han review
Dr. Martinson’s report and, if he concurred with the findings, request authorization for the
recommended treatment.
On September 17, 2008 appellant notified OWCP by telephone that Dr. Han did not want
to see him.
In a report dated September 22, 2008, Dr. Salazar reviewed Dr. Martinson’s opinion. He
again recommended an intrathecal opioid trial.
On January 30, 2009 OWCP advised that it would approve Dr. Salazar’s treatment plan.
Appellant requested a copy of the medical reports to pursue more treatment options.
In a report dated February 20, 2009, Dr. Randi A. Galli, a Board-certified plastic surgeon,
diagnosed probable moderately severe-to-severe right carpal tunnel syndrome with complex
regional pain syndrome developing after a November 21, 2007 carpal tunnel release and
moderate, chronic left carpal tunnel syndrome. For future medical care, he recommended a
rerelease of the right carpal tunnel and a release of the left carpal tunnel.
On June 22, 2009 appellant returned to full-time modified employment.

2

In a report dated July 24, 2009, Dr. Galli noted that appellant had sent a long letter
questioning the contents of his prior report finding that he could work with limitations. He
opined that he showed symptom magnification and asserted that he no longer wanted to perform
his surgery or act as his treating physician.
In a report dated November 17, 2010, Dr. Michael E. Hebrard, a Board-certified
physiatrist, practicing in Oakland, CA, performed an impairment evaluation.2 He diagnosed
bilateral carpal tunnel syndrome and causalgia. Dr. Hebrard recommended a possible
neurostimulator pain pump and “access to a sympathetic block or chain to help with his pain.”
On August 1, 2011 appellant requested that OWCP authorize Dr. Hebrard as his
attending physician, who stated that he was “unable to find any other physician that is willing to
take on a patient with [c]ausalgia.”
On August 3, 2011 OWCP advised appellant that it had updated its acceptance to include
bilateral carpal tunnel syndrome and causalgia of the right upper limb.
Appellant continued to obtain treatment from Dr. Hebrard. On November 1, 2011
Dr. Mathias Masem, a Board-certified orthopedic surgeon, located in Oakland, CA, evaluated
him at Dr. Hebrard’s request. He diagnosed complex regional pain syndrome, Type 2 and
bilateral carpal tunnel syndrome, symptomatic on the right. Dr. Masem recommended a stellate
nerve block and further surgery if symptoms continued.
By letter dated November 11, 2011, appellant requested that OWCP authorize
Dr. Hebrard as his attending physician. He noted that Dr. Cantrell, Dr. Han and Dr. Salazar
refused to act as his attending physician. Appellant telephoned physicians in his area but no one
would agree to treat him. He stated, “Either they would not take a patient that already had
surgery, they no longer worked with DOL, they would not take patients with RSD (causalgia) or
my claim was too old.” Appellant related that OWCP previously refused his request to have
Dr. Martinson act as his attending physician. It told him that he could obtain a specialist opinion
for consultation as recommended by Dr. Martinson but not for treatment, which seemed
“pointless.” After Dr. Galli dismissed him from care he called all physicians on OWCP’s
website and repeatedly asked OWCP for assistance in finding a physician. Appellant asserted
that Dr. Hebrard was “the closest physician that I could find that would be [my] primary treating
physician that would take an OWCP patient that has had prior surgery and has RSD.” He related
that it was an 11- to 12-hour roundtrip to see Dr. Hebrard because he and his wife had to stop
frequently. Appellant requested reimbursement for mileage and hotel expenses.
In a telephone call dated January 24, 2012, OWCP informed appellant that he needed to
document which physicians he called and why they refused to treat him. On February 1, 2012
appellant provided a list of physicians that declined to act as his physician. He stated:
“As I had said in our call, it has been 2 and 3 years since I contacted these
physicians so I may not be 100 percent accurate but these are the names that
2

By decision dated July 19, 2011, OWCP granted appellant a schedule award for a 25 percent permanent
impairment of the right upper extremity.

3

looked very familiar. I cannot remember what office had made what statement as
to why they would not take me on, with the exception of Dr. Cantrell’s office who
had stated that they no longer took DOL cases. I do believe that the other
neurologist(s) in Visalia, Fresno and Bakersfield all stated that I needed to be
referred to them by the primary care physician as they would not be the primary.”
Appellant related that he would accept lower mileage reimbursement or no reimbursement in
order to have Dr. Hebrard as his attending physician.
By decision dated March 21, 2012, OWCP denied appellant’s request to change
physicians to Dr. Hebrard. It noted that the physician was outside his commuting area and that it
was not medically reasonable to obtain treatment 215 to 225 miles away from his location.
OWCP also indicated that a search showed eight neurologists not on his list that were within his
commuting area. It advised him to look for another physician within a 50-mile radius.
On April 2, 2012 appellant, through his attorney, requested a telephone hearing before an
OWCP hearing representative. In a letter dated May 11, 2012, his attorney asked that OWCP
provide a list of physicians within 100 miles in the pertinent area of expertise who would accept
OWCP patients.
At the telephone hearing, held on July 16, 2012, appellant’s attorney asserted that it was
difficult for injured workers to find attending physicians within their geographical area who
would treat OWCP patients. He asked that OWCP provide him with a physician as he was
unable to locate one. Appellant related that he lived 45 to 50 minutes south of Fresno. He
asserted that he had telephoned “pretty much most all neurologists, hand specialists, and
orthopedic surgeons in the Fresno and Visalia area.” Appellant estimated that he had called
around 20 doctors. He could not find anyone closer than Dr. Hebrard with the expertise to treat
causalgia. Appellant maintained that he would not request reimbursement for travel if he could
get approved care. His attorney argued that his request to seek treatment in Oakland from Fresno
was reasonable and noted that he lived in a rural area.
By decision dated September 12, 2012, OWCP’s hearing representative affirmed the
March 21, 2012 decision. He found that appellant had not shown there were no specialists
within his geographical area that would treat him. The hearing representative noted that Fresno
had a population of over 500,000 people and that carpal tunnel syndrome and causalgia could be
treated by several specialties. He thus concluded that OWCP acted reasonably in denying his
request to change physicians.
LEGAL PRECEDENT
The payment of medical expenses incident to securing medical care is provided for under
section 8103 of FECA. The pertinent part provides that an employee may initially select a
physician to provide medical services, appliances and supplies, in accordance with such
regulations and instruction as the Secretary considers necessary.3

3

5 U.S.C. § 8103(a).

4

When the physician originally selected to provide treatment for a work-related injury
refers the employee to a specialist for further medical care, the employee need not consult
OWCP for approval. In all other instances, however, the employee must submit a written request
to OWCP with his reasons for desiring a change of physician. OWCP will approve the request if
it determines that the reasons submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician, who specializes in treating
conditions like the work-related one or the need for a new physician when an employee has
moved.4
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the
best interest of the claimant and the government. Employees who want to change attending
physicians must explain their reasons in writing and OWCP must review all such requests.
OWCP may approve a change when: the original treating physician refers the claimant to
another physician for further treatment; the claimant wants to change from the care of a general
practitioner to that of a specialist in the appropriate field or from the care of one specialist to
another in the appropriate field; or the claimant moves more than 50 miles from the original
physician (since OWCP has determined that a reasonable distance of travel is up to a roundtrip
distance of 100 miles). It must use discretion in cases where other reasons are presented.5
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP
has the general objective of ensuring that an employee recovers from her injury to the fullest
extent possible in the shortest amount of time. It, therefore, has broad administrative discretion
in choosing means to achieve this goal. The only limitation on OWCP’s authority is that of
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
deductions from established facts. It is not enough to show merely that the evidence could be
construed to produce a contrary conclusion.6
ANALYSIS
Following his work injury, appellant received treatment from Dr. Cantrell, Dr. Han and
Dr. Salazar. OWCP referred him to Dr. Martinson for a second opinion examination, who
recommended that he receive treatment from a pain management specialist at an academic
center. Appellant indicated that OWCP would authorize a consultation by a specialist per
Dr. Martinson’s recommendation but not treatment, which he found not helpful. He obtained
treatment in 2009 from Dr. Galli, who recommended further surgery. On July 24, 2009 Dr. Galli
advised that he would no longer act as appellant’s attending physician.

4

20 C.F.R. § 10.316; see also P.M., Docket No. 12-1212 (issued January 24, 2013).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.5c (February 2012).
6

See R.G., Docket No. 12-811 (issued June 15, 2012); Daniel J. Perea, 42 ECAB 221 (1990).

5

On August 1, 2011 appellant submitted a written request to change his attending
physician to Dr. Hebrard. In a statement dated November 11, 2011, he asserted that he had
called the physicians in his area and they refused to treat him as he was an OWCP patient who
had previously had surgery. On February 1, 2012 appellant listed the physicians that he had
telephoned two or three years earlier. He indicated that he could not remember all the reasons
for refusal but that most required a referral from another treating physician. At the hearing,
appellant related that he had called almost all neurologists and orthopedic surgeons in his
geographical area.
The Board finds that OWCP did not abuse its discretion by denying appellant’s request to
change attending physicians to Dr. Hebrard whose office is located 215 to 225 miles away from
appellant’s home. Therefore, a roundtrip would be 430 to 450 miles, which far exceeds the 100mile roundtrip radius that OWCP has found to be reasonable.7 The Board finds this is an
unnecessary distance to travel, especially as OWCP located physicians not on appellant’s list
within his geographical area. Further, he resides within 50 miles of Fresno, a large metropolitan
area. Such a long distance to travel for care does not appear necessary and reasonable or in the
best interest of appellant. In a similar case, the Board found that OWCP acted within its
discretion in denying a claimant’s request to see a physician in San Francisco, CA, which was
102 miles away from his home near Sacramento, CA.8
OWCP noted that there was an extension list of physicians, qualified to treat appellant’s
condition and within a reasonable distance from his home. Thus, while appellant offered some
reasons for requesting to see Dr. Hebrard, OWCP provided sufficient reason for denying his
request.
The Board thus finds that OWCP properly exercised its discretion in denying
authorization for a change of physician to Dr. Hebrard. There is no proof of manifest error,
clearly unreasonable judgment or illogical action. Appellant failed to submit any evidence or
explanation to demonstrate that OWCP’s decision to deny the change in physicians was
unreasonable. The Board finds that OWCP did not abuse its discretion by refusing to authorize
Dr. Hebrard as appellant’s attending physician.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to change treating
physicians.

7

See supra note 5.

8

See D.L., Docket No. 10-318 (issued September 8, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7