United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, GREATER
MICHIGAN PERFORMANCE CLUSTER,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 13-767
Issued: July 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2013 appellant filed a timely appeal from the November 27, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and the January 17, 2013
nonmerit decision of 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 these decisions.2
ISSUES
The issues are: (1) whether OWCP properly determined the date of maximum medical
improvement and pay rate in connection with its July 17, 1990 schedule award; and (2) whether
OWCP properly denied appellant’s request for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

1
2

5 U.S.C. §§ 8101-8193.

The record also contains a November 27, 2012 merit decision of OWCP, but appellant has not appealed this
decision.

FACTUAL HISTORY
OWCP accepted that on June 6, 1978 appellant, then a 37-year-old letter carrier, sustained
bilateral meniscus derangement when he was struck by a protruding bolt head. Appellant stopped
work after his June 6, 1978 work injury and, on January 5, 1979, he underwent OWCP-authorized
left knee surgery, including a total medial meniscectomy. He returned to his regular work on
June 23, 1979.
In a July 17, 1990 decision, OWCP granted appellant a schedule award for a 10 percent
permanent impairment of his left leg. The award ran for 28.80 weeks from June 23, 1979 to
January 10, 1980. Appellant’s impairment evaluation at this time appears to have been based on a
March 19, 1990 examination by Dr. Richard Moulton, an attending Board-certified orthopedic
surgeon.
In a September 27, 2011 report, Dr. John W. Ellis, an attending Board-certified family
practitioner, reported the findings of his examination of appellant. He determined that appellant
had a 26 percent permanent impairment of his left leg under the standards of the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6th ed. 2009). Dr. Ellis based his impairment rating on appellant’s total medial
meniscectomy and his lateral collateral ligament and medial collateral ligament laxity.
In a December 10, 2011 report, Dr. Brian M. Tonne, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, determined that appellant had a 28 percent permanent
impairment of his left leg under the standards of the sixth edition of the A.M.A., Guides. He
reviewed the medical evidence of record, including the September 27, 2011 report of Dr. Ellis and
based his impairment rating on appellant’s primary left knee joint arthritis.
In a January 9, 2012 decision, OWCP granted appellant a schedule award for an additional
18 percent permanent impairment of his left leg, such that he received schedule award
compensation for his total left leg impairment of 28 percent. The award ran for 51.84 weeks from
September 27, 2011 to September 23, 2012 and listed the date of maximum medical improvement
as September 27, 2011.
In April 2012, OWCP upgraded appellant’s accepted conditions due to the June 6, 1978
injury to include bilateral traumatic arthropathy of his lower legs and other derangement of his
right knee.
In a March 3, 2012 letter, appellant requested reconsideration noting his disagreement with
OWCP’s July 17, 1990 schedule award decision. He argued that OWCP improperly used a
retroactive date of maximum medical improvement, June 23, 1979, that was more than 10 years
prior to Dr. Moulton’s March 1990 evaluation. Appellant asserted that OWCP denied him a
proper pay rate due to the computation of his July 17, 1990 schedule award with an improper date
of maximum medical improvement. He noted that it was well established that the period covered
by the schedule award commences on the date that the employee reaches maximum medical
improvement from the residuals of the accepted employment injury.
In a May 21, 2012 decision, OWCP determined that appellant was not entitled to
additional schedule award compensation for his left leg, noting that the medical evidence of record

2

showed that he had a 28 percent permanent impairment of his left leg for which he received
schedule awards.
In a May 26, 2012 reconsideration request, appellant indicated that he was not challenging
the percent of left leg impairment granted in OWCP’s July 17, 1990 and January 9, 2012 schedule
award decisions. Rather, he was challenging OWCP’s use of a retroactive date of maximum
medical improvement in the July 17, 1990 decision and the adverse effect it had on the amount of
compensation he received.
In a November 27, 2012 decision, OWCP affirmed its May 21, 2012 decision, noting that
the medical evidence did not show that appellant was entitled to additional schedule award
compensation for his left leg. It stated, “As far as the effective pay rate type, which is noted as the
date disability began: October 23, 1978. A review of the file indicates that you were
appropriately compensated.”
In a December 22, 2012 letter, appellant requested reconsideration of OWCP’s
November 27, 2012 decision. He again asserted that OWCP arbitrarily set a date of maximum
medical improvement which was 11 years prior to the date his physician performed the
impairment measurements for the July 17, 1990 schedule award. Appellant argued that OWCP set
an 11-year retroactive date maximum medical improvement without providing any medical
evidence for setting a retroactive date. He asserted that OWCP did not adequately address the
maximum medical improvement and pay rate matters in its prior decisions.
In a January 17, 2013 decision, OWCP denied appellant’s request for merit review of his
claim. Regarding the basis for the denial of merit review, it stated:
“Formal decisions including schedule awards include appeal rights which allow the
claimant to request an appeal should he or she disagree with a particular decision.
Three different appeal options are available to the claimant and each appeal option
has a specific deadline. Requests for reconsideration must be signed, dated and
received within one year of the date of the decision. While the December 22, 2012
reconsideration request is within one year of the November 27, 2012 decision, your
argument applies to a decision that was issued [12] years ago.
“The evidence you submitted in support of your claim for reconsideration is not
sufficient to warrant review of your claim as the evidence you submitted only
argues the merits of a decision issued in 1990. Your statements relate only to a
decision issued in 1990 and the appeal rights for that decision have long since
expired. Since the appeal rights for the 1990 decision are expired, no further
discussion of the merits of that decision are warranted at this time now or in the
future.”
LEGAL PRECEDENT -- ISSUE 1
It is well settled that the period covered by a schedule award commences on the date that the
employee reaches maximum medical improvement from the residuals of his or her employment
injury and that maximum improvement means that the physical condition of the injured member has

3

stabilized and will not improve further.3 The period covered by a schedule award commences on the
date that the employee reaches maximum medical improvement from the residuals of the work
injury.4 The Board further notes that the determination of the date of maximum medical
improvement and the commencement date of a given schedule award may have an effect on the
particular pay rate applied.
In determining whether a claimant has discharged his burden of proof and is entitled to
compensation benefits, OWCP is required by statute and regulation to make findings of fact.5
OWCP’s procedures further specifies that a final decision of OWCP must include findings of fact
and provide clear reasoning which allows the claimant to “understand the precise defect of the
claim and the kind of evidence which would tend to overcome it.”6 These requirements are
supported by Board precedent.7
ANALYSIS -- ISSUE 1
In a July 17, 1990 decision, OWCP granted appellant a schedule award for a 10 percent
permanent impairment of his left leg. In a January 9, 2012 decision, it granted him a schedule
award for an additional 18 percent permanent impairment of his left leg, such that he received
schedule award compensation for his total left leg impairment of 28 percent.
In a November 27, 2012 decision, OWCP determined that appellant had no more than a 28
percent left leg impairment and found that it had used a proper pay rate in connection with its
July 17, 1990 decision. In a January 17, 2013 decision, it denied his request for merit review.
Appellant has explicitly indicated that he is not challenging the percent of left leg
impairment granted by OWCP in its July 17, 1990 and January 9, 2012 decisions. Rather, he
argued that OWCP improperly used a retroactive date of maximum medical improvement,
June 23, 1979, in connection with its July 17, 1990 schedule award and thereby denied him a
proper pay rate for that award.
The Board finds that OWCP did not provide adequate facts and findings in its
November 27, 2012 decision with respect to appellant’s claim that an improper date of maximum
medical improvement and pay rate was used in connection with the July 17, 1990 schedule
award.8 In its November 27, 2012 decision, OWCP merely stated, “As far as the effective pay rate
type, which is noted as the date disability began: October 23, 1978. A review of the file indicates
that you were appropriately compensated.” It did not provide any discussion of the relevant
3

James Kennedy, Jr., 40 ECAB 620, 626 (1989); Neil Papkin, 39 ECAB 239, 243 (1987).

4

J.C., 58 ECAB 258 (2007).

5

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (March 1997).

7

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

8

20 C.F.R. § 10.126.

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precedent for determining the date of maximum medical improvement and the pay rate for
schedule awards. Given OWCP’s brief conclusory statement on this matter, appellant would not
understand the defects of his claim and the type of evidence needed to overcome them.
Therefore, the case shall be remanded to OWCP for proper evaluation of appellant’s claim
regarding the date of maximum medical improvement and pay rate for his July 17, 1990 schedule
award.9 After such development it deems necessary, OWCP shall issue an appropriate decision
regarding his schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly determined the date of maximum medical improvement and pay rate in connection with
its July 17, 1990 schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: July 8, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

Given the Board’s disposition of the merit issue of this claim, it is not necessary to consider the nonmerit issue.

5


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

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

Docket No. 19-0316
Issued: June 25, 2019

Case Submitted on the Record

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

JURISDICTION
On November 26, 2018 appellant filed a timely appeal from a November 7, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish continuing
employment-related residuals or disability after December 1, 2016.

1
The Board notes that appellant submitted additional evidence on appeal and to OWCP following the November 7,
2018 decision. 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.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 2, 1993 appellant, then a 32-year-old janitor, filed a traumatic injury claim
(Form CA-1) alleging that on February 25, 1993 he experienced back pain after he fell carrying a
bag of salt while in the performance of duty. OWCP accepted the claim for low back strain, an
aggravation of preexisting spinal stenosis at L3-4 and L4-5, and an aggravation of degenerative
disc disease at L5-S1. In June 1995, appellant underwent a lumbar laminectomy at L3-4, L4-5,
and L5-S1 and a discectomy at L5-S1. He stopped work in 1997 and did not return. OWCP paid
appellant wage-loss compensation for total disability on the periodic rolls.
By decision dated June 8, 2004, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award compensation, effective May 16, 2004, as he had refused an
offer of suitable work under 5 U.S.C. § 8106(c)(2). Appellant subsequently requested
reconsideration and by decisions dated November 5, 2004 and June 22, 2006, it denied
modification of its June 8, 2004 decision.
Appellant appealed to the Board. By decision dated February 2, 2007, the Board reversed
the June 22, 2006 decision.4 The Board found that OWCP had not met its burden of proof to
establish that the modified position offered by the employing establishment was suitable.
OWCP reinstated appellant’s wage-loss compensation benefits on the periodic rolls,
retroactive to May 16, 2004.
In a report dated April 3, 2015, Dr. Timothy A. VanFleet, a Board-certified orthopedic
surgeon and OWCP referral physician, found that appellant’s current condition was unrelated to
his accepted employment injury.5 In a supplemental report dated April 21, 2015, he advised that
his temporary aggravation of lumbar degenerative disc disease had resolved and that he was
disabled due to obesity, diabetes, and lumbar degenerative disc disease unrelated to the
February 25, 1993 employment injury.
On April 1, 2016 Dr. Allan Brecher, a Board-certified orthopedic surgeon and OWCP
referral physician, discussed appellant’s history of a 1993 employment injury. He indicated that
the findings on diagnostic studies were insignificant and that the neurological examination
revealed no abnormalities. Dr. Brecher opined that appellant had sustained a temporary
aggravation of spondylosis due to his employment injury that had resolved by July 1993. He found

3

Docket No. 17-1881 (issued May 1, 2018); Docket No. 06-1607 (issued February 2, 2007); Order Dismissing
Appeal, Docket No. 05-1414 (issued November 1, 2005).
4

Id.

5

OWCP erroneously referred to Dr. VanFleet as a referee rather than a referral physician.

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that appellant could return to his regular employment without limitations and required no further
medical treatment.
By decision dated December 1, 2016, OWCP terminated appellant’s wage-loss
compensation and entitlement to medical benefits, effective that date. It found that Dr. Brecher’s
report constituted the weight of the evidence and established that he had no further residuals or
disability due to his accepted employment injury.
On January 23, 2017 appellant requested reconsideration, arguing that Dr. Brecher
inaccurately provided a history of a February 1993 motor vehicle accident, indicated that he had
denied back pain, and maintained that he was dizzy due to his employment injury.
By decision dated April 7, 2017, OWCP denied modification of its December 1, 2016
decision. It found that appellant had not submitted sufficient evidence to overcome the weight
afforded Dr. Brecher’s report, which was based on a recent physical examination and review of
the case record.
On June 1, 2017 appellant again requested reconsideration.6
By decision dated August 16, 2017, OWCP denied modification of its April 7, 2017
decision. It found that appellant had not submitted medical evidence sufficient to show that he
had continuing disability due to his February 25, 1993 employment injury.
Appellant appealed to the Board. By decision dated May 1, 2018, the Board affirmed the
August 16, 2017 decision.7 The Board found that OWCP had properly terminated appellant’s
wage-loss compensation and medical benefits based on the opinion of Dr. Brecher that appellant
had no further disability or need for medical treatment due to his employment injury. The Board
determined that Dr. VanFleet’s opinion as a referral physician bolstered the opinion of
Dr. Brecher. The Board further found that appellant had not submitted sufficient evidence to
establish continuing employment-related disability after December 1, 2016.
In a June 11, 2018 progress report, Dr. Victoria J. Johnson, a Board-certified physiatrist,
obtained a history from appellant who indicated that he experienced back pain for 18 years after a
fall at work. She noted that he had undergone a lumbar decompression surgery at L3-5.
Dr. Johnson advised that an April 16, 2017 magnetic resonance imaging (MRI) scan showed
possible scar tissue around the L3 through S1 thecal sac. She indicated that appellant was not
working and wanted an examination to support disability. Dr. Johnson diagnosed lumbar
spondylosis and attributed some of his pain to scar tissue and obesity.
On September 5, 2018 appellant requested reconsideration. He argued that Dr. Brecher
made inaccurate statements regarding his claim. Appellant submitted an October 26, 2016 work
capacity evaluation (Form OWCP-5c) from a physical therapist and resubmitted an October 26,
6

Appellant submitted a May 25, 2017 report from Dr. Jesse P. Butler, a Board-certified orthopedic surgeon.
Dr. Butler diagnosed chronic low back pain after a laminectomy for congenital stenosis. He related that he had no
opinion regarding whether the condition was employment related.
7

Supra note 3.

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2016 physical therapy evaluation. He further submitted the results of an April 16, 2017 MRI scan
showing possible scar tissue around the operative levels.
By decision dated November 7, 2018, OWCP denied modification of its August 16, 2017
decision.
LEGAL PRECEDENT
Once OWCP properly terminates a claimant’s compensation benefits, he or she has the
burden of proof to establish continuing disability after that date related to the accepted injury.8 To
establish a causal relationship between the condition as well as 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 a causal relationship.9 A claimant must
establish by the weight of the reliable, probative, and substantial evidence that he or she had an
employment-related disability which continued after termination of compensation benefits.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related residuals or disability after December 1, 2016.
On prior appeal the Board found that OWCP had met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits based on the opinion of Dr. Brecher,
who found that appellant had no further disability or residuals of the accepted employment injury.
As the Board had previously affirmed the termination of appellant’s wage-loss
compensation and medical benefits on December 1, 2016 absent further merit review of this issue
by OWCP pursuant to section 8128 of FECA, this issue is res judicata.11 The only issue before
the Board is whether he has established continuing employment-related disability or residuals after
December 1, 2016, causally related to the accepted February 25, 1993 employment injury. The
Board finds that appellant has failed to meet his burden of proof to establish continuing
employment-related disability or residuals.
Following the Board’s May 1, 2018 decision, appellant requested reconsideration and
raised arguments regarding Dr. Brecher’s opinion. As noted, the Board’s previous review of the
evidence regarding the termination of his wage-loss compensation and medical benefits is res
judicata.12

8

V.G., Docket No. 17-0583 (issued July 23, 2018).

9

C.L., Docket No. 18-1379 (issued February 3, 2019).

10

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

11

V.G., supra note 8.

12

D.M., Docket No. 18-0746 (issued November 26, 2018).

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In a report dated June 11, 2018, Dr. Johnson discussed appellant’s history of back pain
after a fall at work and lumbar decompression surgery at L3-5. She reviewed the results of an
April 16, 2017 MRI scan. Dr. Johnson diagnosed lumbar spondylosis and attributed some of his
pain to scar tissue and obesity. She did not, however, address the relevant issue of whether
appellant was disabled from employment or required further medical treatment due to his accepted
employment injuries, and thus her opinion is of little probative value.13
Appellant further submitted evidence from a physical therapist. However, these documents
do not constitute competent medical evidence because a physical therapist is not considered a
“physician” as defined under FECA.14 Additionally, the MRI scan interpreted by Dr. Johnson is
insufficient to discharge his burden of proof regarding continuing disability as it failed to offer a
physician’s opinion regarding disability or causal relationship.15 The Board, therefore, finds that
appellant has not submitted sufficient medical evidence to demonstrate continuing disability or
residuals causally related to his accepted employment injury.16
On appeal, appellant argues that Dr. Brecher’s report was misleading and that OWCP had
not considered appellant’s October 26, 2016 physical therapy evaluation. As discussed, however,
he has the burden of proof to establish continuing disability or residuals due to his accepted
employment injury through the submission of rationalized medical evidence.17 As appellant has
not submitted such evidence, he has not met his burden of proof.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related residuals or disability after December 1, 2016.

13

R.R., Docket No. 19-0173 (issued May 2, 2019).

14
See M.M., Docket No. 17-1641 (issued February 15, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by state law).
15

J.F., Docket No. 17-1716 (issued March 1, 2018).

16

See supra note 12.

17

See supra note 13.

18

M.C., Docket No. 18-1374 (issued April 23, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the November 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Presidio, TX, Employer
__________________________________________

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

Docket No. 08-1036
Issued: September 11, 2008

Case Submitted on the Record

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

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from a February 4, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied his schedule award
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award issue.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he had a
ratable hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On September 1, 2007 appellant, then a 61-year-old customs and border protection
officer, filed an occupational disease claim alleging that he developed hearing loss in the
performance of duty. He explained that the employing establishment did not offer hearing

protection until recent years. Appellant did not stop work. In support of his claim, he submitted
an audiometric summary record noting his hearing levels as of August 10, 2007.
In an October 26, 2007 statement, appellant described his federal civilian employment
history and noise exposure. He stated that he first joined the employing establishment in
June 1970. Appellant continued to perform essentially the same duties as a customs and border
protection officer until 1977, when he left federal employment and entered the private sector. He
returned to the employing establishment in 1992. Appellant explained that he was required to
undergo quarterly firearm qualifications with both a pistol and a shotgun. Qualifications lasted
at least three hours and involved heavy exposure to noise from gunfire. Appellant also stated
that, between his quarterly firearm qualifications, he was exposed to traffic noise from both cars
and cargo trucks passing through the port of entry, where he was stationed. He explained that he
underwent an examination pursuant to the employing establishment’s health and safety program,
which he failed due to his hearing loss from exposure to gunfire without proper hearing
protection over the years.
On December 10, 2007 the Office referred appellant along with a statement of accepted
facts to Dr. Mark Wegleitner, a Board-certified otolaryngologist, for a second opinion
examination to determine the cause and extent of appellant’s hearing loss.
By correspondence dated December 27, 2007, appellant requested a copy of the second
opinion report after the examination was completed.
Dr. Wegleitner conducted a second opinion examination and prepared a report on
January 8, 2008. He noted appellant’s history of noise exposure in his federal civilian
employment beginning in 1970 and opined that his high frequency hearing loss was not
consistent with age-related hearing loss. Dr. Wegleitner stated that appellant’s noise exposure in
federal civilian employment was sufficiently severe to have caused his hearing loss and also
noted that his hearing was normal prior to his beginning work for the employing establishment.
He diagnosed moderate sensorineural hearing loss due to noise exposure during employment.
An audiogram conducted that day on Dr. Wegleitner’s behalf reflected testing at the 500, 1,000,
2,000 and 3,000 cycles per second (cps) levels and recorded the following decibel losses: 30, 25,
15 and 20 in the right ear and 20, 25, 25 and 30 in the left ear. Dr. Wegleitner found that
appellant’s hearing loss was not ratable pursuant to the American Medical Association, Guides to
the Evaluation of Permanent Impairment, fifth edition1 (A.M.A., Guides).
In a January 23, 2008 report, an Office medical adviser reviewed the record and
concurred with Dr. Wegleitner’s diagnosis and assessment of appellant’s impairment. Applying
the standards set forth in the A.M.A., Guides, he concluded that appellant had zero percent
monaural hearing impairment in the right ear, zero percent monaural hearing impairment in the
left ear and zero percent binaural hearing impairment. The medical adviser also noted
Dr. Wegleitner’s finding that appellant did not presently require hearing aids but may need them
in the future.

1

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

2

In a February 4, 2008 decision, the Office advised appellant that it had accepted his claim
for hearing loss due to work-related exposure to noise. However, it also advised that the extent
of his hearing loss was not ratable for schedule award purposes. Accordingly, the Office found
that appellant was not entitled to a schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of schedule members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.7 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
ANALYSIS
The Office medical adviser applied the Office’s standard procedures, detailed above, to
the January 8, 2008 audiogram performed on Dr. Wegleitner’s behalf. The audiogram tested
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (2002).

4

Id.

5

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

6

Id.

7

Id.

8

Id.

9

Id.

10

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

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decibel losses at the 500, 1,000, 2,000 and 3,000 cps levels and recorded decibel losses of 30, 25,
15 and 20 respectively for the right ear. The total decibel loss in the right ear is 90 decibels.
When divided by 4, the result is an average hearing loss of 22.5 decibels. The average loss of
22.5 decibels is reduced by the “fence” of 25 decibels to equal -2.5 decibels, which when
multiplied by the established factor of 1.5, results in 0 percent monaural hearing loss for the right
ear.
Testing for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps revealed
decibel losses of 20, 25, 25 and 30 decibels respectively, for a total decibel loss of 100 decibels.
When divided by 4, the result is an average hearing loss of 25 decibels. The average loss of 25
decibels is reduced by the “fence” of 25 decibels, to equal 0 decibels, which when multiplied by
the established factor of 1.5, results in a 0 percent monaural hearing loss for the left ear.
The Board finds that the Office medical adviser applied the proper standards to the
findings stated in Dr. Wegleitner’s January 8, 2008 report and audiogram. The result is zero
percent binaural hearing loss, which is not ratable. Therefore, appellant’s hearing loss is not
compensable for schedule award purposes.11
The Board notes that the record also contains a copy of an August 10, 2007 audiometric
summary record. However, the audiogram upon which this summary was based is not of record
nor is there any indication that a physician reviewed and concurred with the listed findings nor is
there any indication as to the circumstances under which the testing was carried out. Office
procedures set forth requirements for the type of medical evidence used in evaluating hearing
loss, including the requirements for audiological testing and equipment.12 The Board has held
that it is appellant’s burden to submit a properly certified audiogram for review if he objects to
the audiogram selected by the Office for the determination of the degree of his hearing loss.13 As
there is no properly certified audiogram with the August 10, 2007 audiometric record, it is
insufficient to determine whether appellant’s hearing loss is ratable.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he was
entitled to a schedule award for ratable binaural hearing loss.

11

The Board notes that appellant asserts on appeal that he has not received a copy of Dr. Wegleitner’s January 8,
2008 report and audiogram. This decision does not preclude appellant from obtaining a copy of the report from the
Office. As noted in the text of this decision, the audiometric testing results obtained on behalf of Dr. Wegleitner
showed that appellant’s hearing loss was not ratable pursuant to the A.M.A., Guides.
12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a) (September 1995).
13

James A. England, 47 ECAB 115 (1995) (an audiogram prepared by an audiologist must be certified by a
physician as being accurate before it can be used to determine the percentage loss of hearing).

4

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shoreline, WA, Employer
__________________________________________

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

Docket No. 19-0426
Issued: June 25, 2019

Case Submitted on the Record

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

JURISDICTION
On December 18, 2018 appellant filed a timely appeal from a November 16, 2018 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 consequential right
knee condition causally related to his accepted June 11, 2009 left knee employment injury.
FACTUAL HISTORY
On July 6, 2009 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 11, 2009 he twisted his left knee alighting a stairway while in
the performance of duty. He stopped work on June 12, 2009. OWCP accepted the claim for a tear
1

5 U.S.C. § 8101 et seq.

of the medial meniscus of the left knee. On July 28, 2009 Dr. Robin Fuchs, a Board-certified
orthopedic surgeon, performed a left knee limited synovectomy and chondroplasty of the patella,
trochlea, and medial femoral condyle.
After experiencing intermittent disability, appellant returned to full-time modified
employment on December 26, 2009.2
OWCP subsequently expanded acceptance of the claim to include localized secondary
osteoarthritis of the left lower leg.3
On January 22, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that on
March 15, 2014 he sustained a recurrence of the need for medical treatment causally related to his
June 11, 2009 employment injury. In an accompanying statement, he related that he had
performed modified duty from December 2009 to March 2014 due to his accepted June 11, 2009
employment injury. During this time, appellant put additional stress on his right knee because his
left knee was injured. On December 22, 2014 he had a right total knee replacement. Appellant
requested a schedule award for his right knee, contending that his right knee condition and right
knee replacement resulted from his left knee injury.
In a development letter dated May 9, 2018, OWCP requested that appellant provide
medical evidence regarding the causal relationship between his employment and his alleged
consequential injury to his right knee. It afforded him 30 days to respond.
In a report dated May 23, 2018, Dr. Fuchs discussed his treatment of appellant for a right
knee condition beginning April 18, 2014. He related that he had undergone a right partial
meniscectomy and debridement on May 13, 2014 and a total knee replacement on
December 22, 2014. Dr. Fuchs diagnosed status post right total knee replacement following a
diagnosis of degenerative arthritis. Regarding causation, he related, “I reviewed with [appellant]
that on his previous chart notes dating back to April 18, 2014 I have no documentation that this
was an injury at work.” Dr. Fuchs related that he had reviewed his chart notes, but could not “find
a causal relationship with work.” He related, “[Appellant] understands, unfortunately, since this
was never discussed prior to his surgeries, it would be difficult to change his medical record. If at
this time he feels there was some injury at work that caused his knee condition he can certainly
pursue this on his own.”
On September 18, 2018 appellant related that after he returned to modified employment in
December 2009 he had overused his right knee due to limitations resulting from his left knee
injury. He requested a schedule award for his total knee replacement.
By decision dated November 16, 2018, OWCP denied appellant’s claim for a consequential
right knee condition. It found that the medical evidence was insufficient to establish that his right

2

Appellant worked modified duty until his retirement on December 1, 2016.

3

By decision dated July 9, 2010, OWCP granted appellant a schedule award for two percent permanent impairment
of the left lower extremity. By decision dated May 8, 2017, it granted him a schedule award for an additional 19
percent left lower extremity impairment.

2

knee condition occurred as a consequence of his accepted June 11, 2009 left knee employment
injury.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent,
intervening cause attributable to the employee’s own intentional conduct.4 The basic rule is that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.5 With respect
to consequential injuries, the Board has held that, where an injury is sustained as a consequence
of an impairment residual to an employment injury, the new or second injury, even though
nonemployment related, is deemed, because of the chain of causation to arise out of and in the
course of employment and is compensable.6
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, explaining causal relationship. Rationalized medical
evidence is an opinion of reasonable medical certainty supported by sound medical rationale
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a consequential
right knee condition causally related to his accepted June 11, 2009 left knee employment injury.
Appellant alleged that he developed a right knee condition that required a total knee
replacement as a result of overcompensating for his accepted left knee injury. He did not, however,
submit sufficient medical evidence to establish a diagnosed right knee condition as a consequential
injury.
On May 23, 2018 Dr. Fuchs discussed appellant’s history of a right knee partial
meniscectomy and debridement on May 13, 2014 and a total knee replacement on
December 22, 2014. He diagnosed status post right total knee replacement. Dr. Fuchs reviewed
chart notes beginning on April 18, 2014 which he advised contained no history of a work injury.
He related that he could not find a causal relationship between appellant’s right knee condition and
4
Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42
ECAB 193 (1990).
5

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117 (1998).

6

R.V., Docket No. 18-0552 (issued November 5, 2018); L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A.
Kelley, 55 ECAB 206 (2004).
7

J.B., Docket No. 14-1474 (issued March 13, 2015).

3

his employment. Dr. Fuchs’ opinion, consequently, is insufficient to establish that appellant
sustained a right knee condition as a consequence of his accepted June 11, 2009 left knee
employment injury.8
On appeal appellant alleged that he would not have sustained a right knee condition
requiring a total knee replacement if he had not experienced the left knee injury on June 11, 2009.
As explained above, however, appellant has the burden of proof to establish a claim for a
consequential injury through the submission of rationalized medical opinion evidence.9 He has
not submitted evidence from a physician who, based on an accurate factual history, found that he
had a right knee condition as a consequence of his accepted left knee condition. Thus, appellant
has not met his burden of proof.10
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a consequential
right knee condition causally related to his accepted June 11, 2009 left knee employment injury.

8

See Y.F., Docket No. 17-1187 (issued June 5, 2018).

9

Id.

10

K.W., supra note 3; see also V.R., Docket No. 17-1166 (issued October 24, 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, SACRAMENTO
PERFORMANCE CLUSTER,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 21-1259
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 16, 2021 appellant filed a timely appeal from April 9 and July 21, 2021 merit
decisions 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 her burden of proof to establish a right foot condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 4, 2021 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she began experiencing occasional burning and pain on
1

5 U.S.C. § 8101 et seq.

the side and bottom of her right heel due to factors of her federal employment, including excessive
walking. She explained that approximately two months prior to filing her claim she began
experiencing burning pain in her heel at the end of her workday, which worsened with increased
walking pace. Appellant alleged that she first became aware of her claimed condition and realized
its relation to her federal employment on January 18, 2021. She stopped work on
February 1, 2021.
In a statement dated January 27, 2021, appellant reiterated the details of the pain symptoms
she experienced due to her employment activities, which culminated in November 2020. She
related that, thereafter, she experienced worsened pain in the last two weeks. Appellant asserted
that she did not injure her foot and that the ongoing pain caused her to seek medical treatment.
On January 29, 2021 Dr. Wanda Blaylark, a Board-certified occupational medicine
specialist, diagnosed right plantar fasciitis and indicated that appellant should only perform
stationary work duties through February 5, 2021.
In a February 4, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP also requested a narrative medical
report from appellant’s treating physician containing a detailed description of findings and a
diagnosis, explaining how her work activities caused, contributed to, or aggravated her medical
condition. In a separate development letter of even date, it requested that the employing
establishment provide comments from a knowledgeable supervisor regarding the accuracy of her
allegations. OWCP afforded both parties 30 days to respond.
A January 29, 2021 note from Dr. Blaylark recounted appellant’s complaints of pain that
she alleged began two months prior and had worsened in the last two weeks. Dr. Blaylark noted
that appellant’s official work duties required her to constantly walk during her delivery route and
that she indicated brisk walking worsened the pain. She also related that appellant denied any
previous right foot condition and that her condition was a work-related injury. In a medical report
of even date, Dr. Blaylark noted appellant’s diagnosed condition and modified work schedule.
On February 5, 2021 appellant followed up with Dr. Blaylark and advised that she had not
experienced improvement in her symptoms following her medical treatment, but that she can
return to work with modified duties. In a work duty status report of even date, Dr. Blaylark
indicated that appellant was in a temporary alternate work status from February 5 to 22, 2021 and
provided modified duties requiring no more than 20 minutes per hour of standing or walking during
that period.
On February 18, 2021 appellant responded to OWCP’s development questionnaire
explaining that her official duties require her to continuously walk an average of five to six hours
while carrying up to 30 pounds of mail on her delivery route. She further asserted that she did not
experience any foot pain previously and that she began experiencing increased pain by the end of
her delivery route. Appellant also indicated that she did not engage in any sports or physical
activities outside of her federal employment.

2

In a February 22, 2021 note, Dr. Blaylark reported that appellant’s condition had slightly
improved with the prescribed medical treatment; however, she continued to experience significant
discomfort when she walked. In a work duty status report of even date, she indicated that appellant
should continue her current work restrictions until March 15, 2021.
A March 15, 2021 note from Dr. Blaylark noted that appellant had seen improvement from
her medical treatment; however, she indicated that appellant was unable to perform the duties of
her date-of-injury position. In a work duty status report of even date, Dr. Blaylark modified her
work restrictions to a maximum of 30 minutes of prolonged standing or walking until
April 26, 2021.
By decision dated April 9, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a right heel condition
causally related to the accepted factors of her federal employment. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
OWCP received a March 25, 2021 note from Dr. Timothy Bernard, a podiatrist, who
opined that appellant’s right plantar fasciitis was aggravated by her prolonged walking and
standing. Dr. Bernard further noted that she did not experience any prior injury or condition of
her right foot before the onset of her current pain.
On April 24, 2021 appellant requested reconsideration of OWCP’s April 9, 2021 decision
and attached additional medical evidence. In a letter of even date, Dr. Blaylark reiterated that her
official duties require her to walk up to 30,000 steps per day on her route and that she did not
experience any prior injuries with her right foot. She opined that appellant’s right heel condition
was causally related to her work activities of prolonged walking and standing.
By decision dated July 21, 2021, OWCP denied modification of its April 9, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 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

2

Supra note 1.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 4 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.5
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
casually related to the identified employment factors by the claimant.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a letter from Dr. Blaylark dated April 24, 2021
wherein she opined that prolonged standing and walking of up to 30,000 steps a day as part of
appellant’s official duties as a mail carrier aggravated her right plantar fasciitis. The Board finds
that, while she provides an opinion on causal relationship, her reports are insufficient to meet
appellant’s burden of proof, as she did not provide adequate medical reasoning to explain how
prolonged standing and walking caused or contributed to appellant’s diagnosed medical condition.
The Board has held that medical evidence that does not offer a rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.9 Thus, Dr. Blaylark’s April 24, 2021 report is insufficient to meet appellant’s burden
of proof.

4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

M.E., Docket No. 18-0940 (issued June 11, 2019).

4

Likewise, in a March 25, 2021 medical report from Dr. Bernard, he opined that appellant’s
right plantar fasciitis was aggravated by prolonged walking and standing at work. He noted that,
prior to November 2020, she had no pain or symptoms in her right foot. As noted above, the Board
has held that a medical opinion without adequate rationale is insufficient to establish appellant’s
burden of proof. Moreover, an opinion that a condition is causally related to an employment
incident because the employee was asymptomatic before the injury is insufficient, without
adequate rationale, to establish causal relationship. 10 Therefore, Dr. Bernard’s report is
insufficient to establish appellant’s burden of proof.
The remaining evidence of record includes notes dated January 29 to March 15, 2021 from
Dr. Blaylark where she recounted appellant’s history of injury and medical treatment. Dr. Blaklark
diagnosed right plantar fasciitis and provided work restriction. However, she did not offer an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 11 As such, Dr. Blaylark’s remaining reports are of no probative value and are
insufficient to establish appellant’s claim.
As there is no rationalized medical evidence explaining how appellant’s employment duties
caused or aggravated her diagnosed condition, the Board finds that she has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the factors of her federal employment.

10

See S.D., Docket No. 20-1255 (issued February 3, 2021); F.H., Docket No. 18-1238 (issued January 18, 2019);
J.R., Docket No. 18-0206 (issued October 15, 2018).
11

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the April 9 and July 21, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF THE ARMY, AVIATION
& MISSLE COMMAND, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 16-0677
Issued: June 16, 2016

Case Submitted on the Record

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

JURISDICTION
On February 22, 2016 appellant filed a timely appeal from a February 9, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated January 30, 2014, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant argues that OWCP failed to state the basis for its February 9, 2016
decision and requests a reconsideration of her claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 22, 2013 appellant, a 52-year-old aircraft production controller, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome due to factors of her federal employment, including repetitive typing, keypunching,
and other computer work.
Appellant submitted an April 24, 2013 report from Dr. James Key, a Board-certified
orthopedic surgeon, who diagnosed bilateral carpal tunnel syndrome, bilateral medial
epicondylitis, and bilateral lateral epicondylitis. Dr. Key opined that appellant’s conditions were
occupational, work-related injuries caused by repetitive keypunching and constant use of a
computer at work.
By decision dated July 9, 2013, OWCP denied appellant’s claim finding the factual
evidence of record insufficient to establish that the work injury occurred as alleged.
On October 28, 2013 appellant requested reconsideration and submitted a narrative
statement indicating that 90 to 95 percent of her job required use of a typewriter, keypunch, or
computer. She also submitted electrodiagnostic studies dated November 7, 2012 which revealed
evidence of a mild-to-moderate bilateral carpal tunnel syndrome. In an October 21, 2013 report,
Dr. Key reiterated his opinion that appellant’s occupational overuse of the hands, wrists, and
elbows caused bilateral carpal tunnel syndrome.
By decision dated January 30, 2014, OWCP denied modification of the claim finding that
the medical evidence of record failed to establish a causal relationship between appellant’s
conditions and the accepted factors of her federal employment.
On December 18, 2015 OWCP received appellant’s December 14, 2015 request for
reconsideration and submitted an April 7, 2014 report from Dr. Thomas Martens, a family
practitioner, who diagnosed bilateral carpal tunnel syndrome and opined that appellant’s medical
condition was a direct result of performing continuous and repetitive duties of constant typing
into the computer and making handwritten entries into a log book at work for the past 33 years.
She also submitted a June 22, 2015 report from Dr. Key who reiterated his medical diagnoses
and opinions.
By decision dated February 9, 2016, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of
error. OWCP noted that it had reviewed the evidence submitted to determine whether its
January 30, 2014 decision was incorrect.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).3 One such limitation provides that an application
2

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

for reconsideration must be submitted within one year of the date of the OWCP decision for
which review is sought.4 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted OWCP under 5
U.S.C. § 8128(a).5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.9 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.13

4

20 C.F.R. § 10.607(a).

5

See Jesus D. Sanchez, supra note 2; F.R., Docket No. 09-575 (issued January 4, 2010).

6

20 C.F.R. § 10.607(b).

7

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

8

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

9

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

See Leona N. Travis, 43 ECAB 227, 241 (1991).

11

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

3

ANALYSIS
The Board finds that OWCP properly determined that appellant failed to timely request
reconsideration. OWCP’s regulations14 and procedures15 establish a one-year time limit for
requesting reconsideration, which begins on the date of the original OWCP decision. The most
recent merit decision was OWCP’s January 30, 2014 decision. Appellant had one year from the
date of this decision to make a timely request for reconsideration. Since appellant did not file her
request until December 18, 2015, it was filed outside the one-year time period. As appellant’s
December 18, 2015 request for reconsideration was received more than one year after the
January 30, 2014 merit decision, it was untimely filed. Consequently, she must demonstrate
clear evidence of error by OWCP in the denial of her claim.16
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s January 30,
2014 decision or shift the weight of the evidence in her favor.
In his April 7, 2014 report, Dr. Martens diagnosed bilateral carpal tunnel syndrome and
opined that appellant’s condition was a direct result of performing continuous and repetitive
duties of constant typing into the computer and making hand-written entries into a log book at
work for the past 33 years. The term clear evidence of error is intended to represent a difficult
standard.17 A detailed, well-rationalized medical report which would have created a conflict in
medical opinion requiring further development if submitted prior to issuance of the denial
decision, does not constitute clear evidence of error.18 It is not enough to show that evidence
could be construed so as to produce a contrary conclusion. Instead, the evidence must shift the
weight in appellant’s favor.19 While Dr. Martens’ report is generally supportive of causal
relationship, it does not demonstrate clear error on the part of OWCP in rendering its January 30,
2014 decision. Thus, the Board finds that the report of Dr. Martens is insufficient to shift the
weight of the evidence in favor of appellant or raise a fundamental question as to the correctness
of OWCP’s January 30, 2014 merit decision.
The June 22, 2015 report from Dr. Key is repetitive of reports previously of record and
does not show error with respect to the January 30, 2014 decision.20 The Board has held that
repetitive or cumulative evidence is insufficient to shift the weight of the evidence in favor of the
14

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2004); see
Veletta C. Coleman, supra note 12.
16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 7.
18

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

19

See M.N., Docket No. 15-0758 (issued July 6, 2015).

20

See L.M., Docket No. 14-1738 (issued March 3, 2015) (where the claimant resubmitted medical reports
previously of record, the Board found that the evidence was duplicative and failed to establish clear evidence of
error).

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claimant.21 Appellant has not explained how the submission of this report raises a substantial
question concerning the correctness of OWCP’s decision.
The Board finds that the evidence submitted is insufficient to prima facie shift the weight
of the evidence in favor of her claim or raise a substantial question that OWCP erred in its
January 30, 2014 decision.
On appeal, appellant argues that OWCP failed to state the basis for its February 9, 2016
decision and requests a reconsideration of her claim. The Board finds that OWCP’s February 9,
2016 decision denied appellant’s request for reconsideration finding that it was untimely filed
and failed to demonstrate clear evidence of error and explained that it had reviewed the evidence
submitted to determine whether its January 30, 2014 decision was incorrect. The Board noted
above that it only has jurisdiction over OWCP’s February 9, 2016 nonmerit decision which
denied appellant’s request for reconsideration and therefore is precluded from conducting a merit
review. As explained, the evidence provided by appellant is insufficient to shift the weight of the
evidence in her favor and does not demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

21

See D.E., 59 ECAB 438 (2008); A.F., Docket No. 11-1297 (issued December 20, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SERVICES AGENCY,
Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0854
Issued: July 19, 2021

Case Submitted on the Record

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

JURISDICTION
On March 6, 2020 appellant filed a timely appeal from a February 19, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
authorization of right hip arthroplasty.
FACTUAL HISTORY
On August 29, 2018 appellant, then a 59-year-old training specialist, filed a notice of
traumatic injury (Form CA-1) alleging that on August 28, 2018 he sustained a right hip contusion
1

5 U.S.C. § 8101 et seq.

when he was opening the door to leave his office and the door struck his right hip, leg, and foot.
He stopped work on August 30, 2018 and was cleared to return to full-time work with restrictions
on November 27, 2018. OWCP accepted the claim for right hip contusion and right hip
sprain/strain. It paid appellant intermittent wage-loss compensation on the supplemental rolls from
October 15, 2018 through June 7, 2019.
An August 31, 2018 magnetic resonance imaging (MRI) scan of appellant’s right hip
demonstrated the presence of joint fluid compatible with synovitis.
A July 23, 2019 right hip x-ray revealed no evidence of joint osteophytes, erossive changes,
bony degenerative change or other arthropathy. A six millimeter calcification of the soft tissue
superior to the greater trochanter consistent with calcific tendinopathy at the gluteal tendon
insertion was noted.
In a July 29, 2019 report, Dr. Imran Ashraf, a Board-certfied orthopedic surgeon, related
that appellant was seen for his right hip pain from an employment injury. He noted that appellant
had been treated with right hip cortisone injections, which provided temporary relief. Appellant
described a recurrence of the right hip pain, which had progressively worsened. Physical
examination and range of motion findings were provided. Dr. Ashraf diagnosed right hip synovitis
and arthritis secondary to a work-related injury. He noted that apellant may have had a preexisting
history of right hip arthritis which further exercabated his condition. Since appellant had failed
conservative mangement and had progressing symptoms, Dr. Ashraf recommended total hip
replacement surgery.
On July 31, 2019 Dr. Ashraf requested authorization for total right hip replacement
surgery. He diagnosed right hip synovitis and trochanteric bursitis. Dr. Ashraf explained that
appellant’s condition had not improved with physical therapy or cortisone injections, but that his
symptoms had progresively worsened.
On August 9, 2019 OWCP referred a statement of accepted facts (SOAF), the medical
record, and a series of questions to Dr. Nathan Hammell, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), to determine whether the requested surgery
was medically necessary. In an August 27, 2019 report, the DMA explained that he had reviewed
the SOAF and the medical record, including Dr. Ashraf’s July 29 and 31, 2019 reports. He noted
that the most recent clinical notes reported that appellant was seen for lateral right hip pain, had
preserved range of motion (ROM), and there was radiographic evidence of arthritis. The DMA
related that the requirements for optimal benefits for hip replacement included end-stage
radiographic changes, less than 35 body mass index, failure of conservative treatment, and
significant functional limitations. While the recommendation for appellant’s right hip arthroplasty
was for treatment of arthritis, arthritis was not an accepted condition. The DMA also found the
surgery was not medically necessary as the record contained no evidence of radiographic arthritis.
In an August 30, 2019 report, Dr. Oleg Olshanetskly, an osteopath, related appellant’s
medical and injury histories and provided examination findings. He reviewed right hip x-ray
intepretations, which he found negative, and a right hip MRI scan, which showed the presence of
joint fluid compatible with synovitis. Diagnoses included right hip contusion and right hip
strain/sprain.

2

In a development letter dated Septemer 19, 2019, OWCP informed appellant that the
evidence of record was insufficient to authorize the proposed surgery as it did not appear to be
medically necessary for and/or causally related to the accepted conditions. A copy of the DMA’s
report was attached for appellant’s review. OWCP requested that appellant provide a detailed
narrative report from his physician explaining how the requested surgery was medically necessary
for his accepted employment injury. It afforded him 30 days to submit the necessary evidence.
In response to OWCP’s request, appellant submitted an August 30, 2019 computerized
tomography scan of his right hip which showed moderate osteoarthosis at the symphysis pubils
and mild bilateral sacroiliac joint osteoarthritis, unchanged small five by two millimeters
calcification at the right gluteus medius tendon, and no selective muscle atrophy or attenuation
anomaly.
Follow-up reports dated September 20, November 22, and December 19, 2019 from
Dr. Olshanetskly related unchanged findings from his August 30, 2019 report.
Dr. Ashraf, in reports dated November 25, 2019 and January 25, 2020, diagnosed right hip
synovitis and arthritis, which he attributed to appellant’s work injury. He noted that he had
reviewed a weight-bearing right hip x-ray, which revealed advanced right hip osteoarthritis and no
fracture or dislocation.
By decision dated February 19, 2020, OWCP denied appellant’s request for authorization
of right hip arthroplasty, finding that the evidence of record did not support that it was medically
necessary to address the effects of the employment-related injury.
LEGAL PRECEDENT
Section 8103 of FECA2 provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.3 In interpreting this section of FECA, the
Board has recognized that OWCP has broad discretion in approving services provided under
section 8103, and the only limitation on OWCP’s authority is that of reasonableness.4
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.5 Proof of causal relationship in a case such as this
2

Supra note 1.

3

5 U.S.C. § 8103(a); see L.K., Docket No. 18-1183 (issued May 12, 2020); M.P., Docket No. 19-1557 (issued
February 24, 2020); M.B., 58 ECAB 588 (2007).
4
B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
5

See R.M., Docket No. 19-1319 (issued December 10, 2019) Debra S. King, 44 ECAB 209 (1992).

3

must include supporting rationalized medical evidence.6 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.7
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of right hip arthroplasty.
The claim was accepted for right hip contusion and right hip sprain/strain. In a July 29,
2019 report, Dr. Ashraf noted that appellant was seen for complaints of right hip pain due to an
employment injury. In reports dated November 25, 2019 and January 20, 2020, Dr. Ashraf
reported that a right hip weight-bearing x-ray interpretation revealed advanced right hip
osteoarthritis. He diagnosed right hip synovitis and arthritis due to a work injury. However,
Dr. Ashraf did not explain how and/or why the accepted August 28, 2018 employment injury
resulted in the additional condition of right hip synovitis and arthritis, which he diagnosed in 2019.
As Dr. Ashraf failed to provide medical rationale explaining how the requested surgery was
necessary to treat appellant’s accepted right hip contusion and sprain/strain or how the additional
condition of right hip synovitis and arthritis was causally related to the accepted August 28, 2018
employment injury, his reports are of diminished probative value.8 These reports therefore lack
probative value regarding the issue of whether the requested procedure was medically necessary
due to the accepted employment injury.9
Following appellant’s request for authorization of right hip surgery, OWCP sent a copy of
the case record, and a SOAF to a DMA for an opinion as to whether the requested surgery was
medically necessary and resulted from the accepted August 28, 2018 employment injury. The
DMA reviewed the medical evidence of record and concluded that the proposed right hip
arthroplasty was neither warranted nor necessitated by appellant’s accepted conditions. He
explained that the surgery was not medically necessary as there was no radiographic arthritis. The
DMA concluded, therefore, that the requested surgery was not work related and was not medically
necessary.
The remaining medical evidence of record did not address the relevant medical issues. The
March 31, 2019 MRI scan, July 23, 2019 x-ray interpretation, and Dr. Olshanetsky’s reports dated
August 30, September 20, November 22, and December 19, 2019 did not address whether the
requested right hip arthroplasty was medically necessary and causally related to the accepted

6
B.I., supra note 4; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB
282 (1986).
7

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

8

M.P., Docket No, 19-1557 (issued February 24, 2020); M.M., Docket No. 19-0563 (issued August 1, 2019); N.G.,
Docket No. 18-1340 (issued March 6, 2019).
9

See M.M., id.; G.V., Docket No. 18-0482 (issued May 21, 2019); N.G., id.

4

employment injury.10 Therefore, these reports were insufficient to establish that the requested
surgical procedure should be authorized.
The Board finds that OWCP did not abuse its discretion in denying authorization for the
proposed right hip arthroplasty. As noted above, the only restriction on OWCP’s authority to
authorize medical treatment is one of reasonableness.11 As none of the medical evidence explained
how the proposed surgery was medically necessary or causally related to the accepted right hip
contusion and sprain/strain, the Board finds that OWCP acted reasonably in denying appellant’s
request for authorization for right hip arthroplasty.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of right hip arthroplasty.

10

Supra note 7.

11

Supra note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6