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

)
)
)
)
)
)
)
)

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

Docket No. 16-0469
Issued: May 6, 2016

Case Submitted on the Record

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

JURISDICTION
On January 14, 2016 appellant filed a timely appeal from a December 31, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $15,308.02 for the
period July 1, 2012 through July 25, 2015 because OWCP failed to reduce his benefits by the
Federal Employees’ Retirement System (FERS) offset amount; (2) whether OWCP properly
denied waiver of the overpayment; and (3) whether it properly determined that it would recover
the overpayment by deducting $425.22 from continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 31, 2000 appellant, then a 49-year-old mail carrier,
sustained acute back strain, an aggravation of lumbar degenerative disc disease, and major
depressive disorder in the performance of duty. He stopped work on June 1, 2000 and returned
to part-time employment on August 14, 2000. Appellant stopped work again on December 15,
2000 and did not return.2 OWCP paid him compensation for total disability.3
On June 5, 2012 OWCP noted that appellant was almost 62 years old and advised him
that FECA required a reduction in benefits if he received retirement benefits from the Social
Security Administration (SSA) attributable to federal service. It advised him to contact OWCP
promptly if he received SSA retirement benefits to avoid an overpayment of compensation.
SSA, in a form dated July 15, 2015, provided the amount that appellant received in
retirement benefits with FERS and also the hypothetical amount that he would have received
without FERS. Including federal employment, he was entitled to a monthly payment rate of
$1,207.10 effective July 2012, $1,227.60 effective December 2012, $1,246.00 effective
December 2013, and $1,267.10 effective December 2014. Without counting appellant’s federal
earnings, he was entitled to a monthly payment rate of $803.30 effective July 2012, $816.90
effective December 2012, $829.10 effective December 2013, and $843.10 effective
December 2014.
By letter dated July 29, 2015, OWCP advised appellant that it was adjusting his
compensation to offset the portion of his SSA retirement benefits attributable to his federal
service. It informed him that the portion of the SSA benefits earned as a federal employee was
part of the FERS retirement package and that FECA did not allow the simultaneous receipt of
workers’ compensation and federal retirement benefits.
On July 31, 2015 OWCP calculated the overpayment by determining the difference
between appellant’s SSA amount with and without FERS for each period. It then multiplied the
daily offset amount by the number of days in each period to find a total overpayment of
$15,308.02.
In a telephone call dated August 3, 2005, appellant advised that SSA was not paying him
the correct amount. He indicated that he was receiving around $800.00 per month from SSA.
On August 14, 2015 OWCP notified appellant of its preliminary determination that he
received an overpayment of $15,308.02 as he had received compensation benefits for the period
July 1, 2012 through July 25, 2015 that had not been reduced by the portion of his SSA benefits
earned based on his federal service. It determined that he began receiving regular retirement
2

In a decision dated April 15, 2003, OWCP terminated appellant’s compensation benefits after finding that the
weight of the evidence established that he had no further disability due to his May 31, 2000 employment injury. On
February 9, 2004, an OWCP hearing representative reversed the April 15, 2003 decision.
3

By decision dated March 23, 2005, OWCP found that appellant received an overpayment of $3,070.75 because
it had not withheld appropriate premiums for health and optional life insurance from April 11, 2003 through
March 1, 2004.

2

benefits under SSA on July 1, 2012. OWCP found that the portion of the SSA benefits he
received due to his federal service was part of FERS retirement package and thus a prohibited
dual payment. It further made a preliminary determination that appellant was without fault in
creating the overpayment. OWCP requested that he complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, it notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
Appellant telephoned OWCP on August 27, 2015 and contended that he was receiving
compensation from SSA without the FERS rate. On August 28, 2015 OWCP provided him with
its overpayment calculations.
On August 28, 2015 appellant challenged the existence of an overpayment. He submitted
an April 21, 2012 notification from SSA advising him that it had reduced his disability payments
as he was receiving compensation from OWCP, but that effective July 2012 he could receive
retirement benefits of $910.00. The form further indicated that he could elect disability benefits
again at age 65, when it no longer considered workers’ compensation benefits. Appellant elected
to receive retirement benefits beginning July 2012.
In a notice of award dated July 16, 2012, SSA advised appellant that beginning July 2012
he would receive $910.00 a month in SSA retirement benefits. In 2013 it informed him that he
would receive $925.00 per month. In 2014 SSA notified him that he would receive a monthly
benefit payment of $939.00 and in 2015 a monthly benefit payment of $955.00.
Appellant also submitted Form SSA-1099 benefits statements from 2012 to 2014
indicating that SSA had offset his workers’ compensation benefits from his SSA benefits. In
2012 SSA paid appellant a total of $20,078.00 in benefits, which included payment by check or
direct deposit of $6,440.00 and an offset of workers’ compensation of $13,638.00, in 2013 SSA
paid him a total of $24,738.00 in benefits, or $11,100.00 by check or direct deposit and
$13,638.00 in workers’ compensation offset, and in 2014 it paid him $24,906.00, or $11,268.00
by check or direct deposit and $13,628.00 in workers’ compensation offset.
By letter dated August 28, 2015, appellant reiterated his contention that he was not
receiving SSA benefits based on his federal service as part of FERS. He maintained that the
benefits he received were a result of private employment. Appellant submitted evidence
showing deposits into his checking account by SSA.
In a decision dated December 31, 2015, OWCP determined that appellant received an
overpayment of $15,308.02 from July 1 through 25, 2012 because it had not offset his
compensation to reflect SSA benefits attributable to his federal service. It found that he was
without fault in creating the overpayment, but denied waiver as he had not submitted any
financial information. OWCP noted that documents provided by appellant supported that SSA
continued to offset his retirement benefits for workers’ compensation. It found, however, that an
overpayment existed as it continued to pay him workers’ compensation benefits without the
appropriate offset. OWCP determined that it would recover the overpayment by deducting
$425.22 from appellant’s continuing compensation payments.

3

On appeal appellant contends that SSA was paying him an amount that was not based on
his federal service as evidenced by the deposits that he provided.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA4 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.6
Section 816(d) of FECA requires that compensation benefits be reduced by the portion of
SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his compensation benefits shall be
reduced by the amount of SSA benefits attributable to his or her federal service.7
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.8 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant had received SSA benefit, OWCP will obtain information from the
SSA on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits. SSA will provide the actual amount of SSA benefits received by the claimant/
beneficiary. It will also provide a hypothetical SSA benefit computed without the FERS covered
earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to determine
the amount of benefits which are attributable to federal service and that amount will be deducted
from FECA benefits to obtain the amount of compensation payable.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained acute back strain, an aggravation of
degenerative disc disease of the lumbar spine, and major depressive disorder due to a May 31,
2000 employment injury. Appellant stopped work on June 1, 2000, returned to work part time
on August 14, 2000, and stopped work again on December 15, 2000. OWCP paid him
compensation for total disability.
4

5 U.S.C. § 8101 et seq.

5

Id. at § 8102.

6

Id. at § 8129(a).

7

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
9

See L.B., Docket No. 11-2076 (issued August 29, 2012).

4

In a notification dated April 21, 2012, SSA advised appellant that it was currently
reducing his disability compensation payments as he was receiving workers’ compensation but
that as of July 2012 he could elect to receive retirement benefits of $910.00 per month.
Appellant indicated on the form that he wanted to obtain retirement benefits beginning
July 2012.
SSA informed appellant on July 16, 2012 that he would receive $910.00 per month in
retirement benefits. It notified him that he would receive $925.00 per month beginning
January 3, 2013, $939.00 per month beginning January 3, 2014, and $955.00 per month
beginning January 2, 2015.
In a form dated July 15, 2015, SSA specified the amount that appellant received in
monthly retirement benefits with federal service under FERS and without federal services. It
indicated that with FERS he received $1,207.10 as of July 2012, $1,227.60 as of
December 2012, $1,246.00 as of December 2013, and $1,267.10 as of December 2014. Without
counting appellant’s federal earnings, he was entitled to a rate of $803.30 beginning July 2012,
$816.90 beginning December 2012, $829.10 beginning December 2013, and $843.10 beginning
December 2014.
OWCP determined that appellant received an overpayment because OWCP had failed to
deduct the amount that he received in retirement benefits attributable to his federal service from
his compensation payments. It noted that SSA continues to offset workers’ compensation
benefits even after it begins paying disability retirement, but found that SSA’s offset of his
compensation did not relieve OWCP of its obligation to offset his retirement due to federal
service from his workers’ compensation benefits.
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation. SSA informed OWCP that with his federal service
under FERS he received $1,207.10 in July 2012, $1,227.60 in December 2012, $1,246.00 in
December 2013, and $1,267.10 in December 2014. SSA advised appellant, however, that his
benefit payment would be $910.00 in 2012, $925.00 in 2013, $939.00 in 2014, and $955.00 in
2014. Appellant argued that he did not receive retirement benefits from SSA based on his
federal service. He submitted evidence showing a discrepancy between the amount SSA
indicated that he would receive in retirement with FERS benefits and the amount that SSA
informed him that he would receive in benefits.
Given the discrepancy between the amount SSA informed OWCP that appellant was
receiving with FERS and the amount SSA told him that he would receive, OWCP should have
further developed the evidence by obtaining information from SSA and the Office of Personnel
Management (OPM) regarding appellant’s retirement benefits and confirming his SSA rate with
and without any offset required based on his federal civilian service. Accordingly, the Board
will remand the case for OWCP to reconsider whether appellant received an overpayment of
compensation.10

10

Given the Board’s disposition of fact of overpayment, it is premature to address the issues of waiver and
recovery of the overpayment.

5

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT December 31, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 6, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Nashville, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0765
Issued: February 10, 2022

Case Submitted on the Record

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

JURISDICTION
On April 7, 2021 appellant filed a timely appeal from December 21, 2020 and March 5,
2021 merit decisions as well as a March 8, 2021 nonmerit 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 the
case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 8, 2021 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work on October 15, 2020 causally related to her accepted August 19, 2020 employment
injury; (2) whether appellant has met her burden of proof to expand the acceptance of the claim to
include a head injury causally related to the accepted August 19, 2020 employment injury; and
(3) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 19, 2020 appellant, then a 52-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on that day, she sustained an abrasion and scratch to her
right knee when she fell walking to a stacking machine while in the performance of duty. OWCP
accepted the claim for patellar tendinitis, right knee, and trochanteric bursitis, right hip, noting that
her healthcare provider requested that appellant be further evaluated for a head injury related to
her accepted work event.
In a letter dated October 16, 2020, Dr. Daniel McGee, an osteopath specializing in family
medicine, related that on August 19, 2020 appellant fell at work and hit her head. He stated that
she required a computerized tomography (CT) scan and follow-up appointment with a neurologist.
OWCP received a CT scan of appellant’s head dated October 16, 2020 from Dr. Kevin
Cunneely, a Board-certified diagnostic radiologist. Dr. Cunneely related that appellant had a
normal CT examination.
By decision dated December 21, 2020, OWCP found that appellant had not met her burden
of proof to expand the acceptance of her claim to include a diagnosed head injury causally related
to the accepted August 19, 2020 employment injury.
Appellant submitted a medical report dated December 30, 2020 from Dr. Damon H. Petty,
a Board-certified orthopedic surgeon, which listed appellant’s diagnoses of greater trochanteric
bursitis, right hip and patellar tendinitis, right knee.
On January 25, 2021 appellant filed a claim for compensation (Form CA-7) for disability
from work on October 15, 2020. She noted that on that day she had used eight hours of leave
without pay due to right knee pain.
In a development letter dated February 1, 2021, OWCP informed appellant that it had not
received any evidence to support her claim for wage-loss compensation on October 15, 2020. It
advised her of the type of medical evidence necessary to establish her claim and afforded her 30
days to submit the requested medical evidence.
On February 22, 2021 appellant requested reconsideration of OWCP’s December 21, 2020
decision denying expansion of the acceptance of her claim.
On March 1, 2021 OWCP received a Leave Year 2020 Absence Analysis, which indicated
that appellant had taken leave without pay on October 15, 2020.
2

By decision dated March 5, 2021, OWCP denied appellant’s claim for compensation for
disability from work on October 15, 2020. It found that the medical evidence of record was
insufficient to establish that she was disabled from work causally related to her August 19, 2020
employment injury.
By decision dated March 8, 2021, OWCP denied reconsideration of its December 21, 2020
decision denying the expansion of the acceptance of appellant’s claim to include a head injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 4 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. 5 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are m edical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence. 6
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.7 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages. 8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.9 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of

3

See supra note 1.

4

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
5

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

6

20 C.F.R. § 10.5(f); J.M., Docket No. 18-0763 (issued April 29, 2020).

7

Supra note 5.

8

Id.

9

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

3

the relationship between the diagnosed condition and the specific employment factors identified
by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability from
work on October 15, 2020 causally related to her accepted August 19, 2020 employment injury.
OWCP, in its February 1, 2021 development letter, notified appellant of the type of medical
evidence to establish that she was disabled from work on the date claimed as a result of the
accepted employment injury. However, no medical evidence was received pertaining to this
disability claim prior to OWCP’s March 5, 2021 decision.
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the acce pted
employment injury. 11 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability on the date claimed due to her accepted
employment injury, the Board finds that she has not met her burden of proof to establish her claim.
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury. 12 The medical evidence required to establish causal relationship
between a specific condition and the employment injury is rationalized medical opinion evidence.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment incident identified by the claimant. 13
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to expand the acceptance
of the claim to include a head injury causally related to the accepted August 19, 2020 employment
injury.
OWCP received a CT scan report of appellant’s head dated October 16, 2020 from
Dr. Cunneely. Dr. Cunneely reported normal findings. It is appellant’s burden of proof to obtain
10

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
11

Supra note 4.

12

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
13

See E.J., Docket No. 09-1481 (issued February 19, 2010).

4

and submit medical documentation containing a firm diagnosis causally related to the accepted
employment injury.14 As this report did not provide a firm diagnosis of a head injury causally
related to the accepted employment injury, it is insufficient to establish causal relationship. 15
In an October 16, 2020 letter, Dr. McGee related that on August 19, 2020 appellant fell at
work and hit her head. However, this document did not specifically provide a physician’s
diagnosis of appellant’s condition. The Board has held that a medical report is of no probative
value if it does not provide a firm diagnosis of a particular medical condition, or offer a specific
opinion as to whether the accepted employment incident caused or aggravated the claimed
condition.16
As the medical evidence of record is insufficient to establish a diagnosed head condition
causally related to the accepted August 19, 2020 employment injury, the Board finds that appellant
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.
LEGAL PRECEDENT -- ISSUE 3
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18

14

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

See J.C., Docket No. 20-1509 (issued May 25, 2021).

16

L.E., Docket No. 19-0470 (issued August 12, 2019); M.J., Docket No. 18-1114 (issued February 5, 2019).

17

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
18

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 19 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.21
ANALYSIS -- ISSUE 3
OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
In her February 22, 2021 request for reconsideration of OWCP’s December 21, 2020
decision denying expansion of the acceptance of her claim to include a head injury, appellant did
not allege or demonstrate that OWCP erroneously applied or interpreted a specific point of law.
Moreover, she has not advanced a relevant legal argument not previously considered.
Consequently, appellant is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).22
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Although evidence submitted on reconsideration need not
carry appellant’s burden entirely to warrant reopening the claim for merit review, the new evidence
must at least be relevant and pertinent to the issue(s) of the contested decision of OWCP. 23
Appellant submitted a medical report dated December 30, 2020 from Dr. Petty; however, this
report did not provide a diagnosis of a head injury. This report, therefore, did not constitute
relevant and pertinent new evidence regarding the underlying issue of whether appellant sustained
a head injury causally related to the accepted employment injury. 24 As appellant did not provide
relevant and pertinent new evidence, she is not entitled to a merit review based on the third
requirement under 20 C.F.R. § 10.606(b)(3).25

19

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
20

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).
22

C.B., Docket No. 18-1108 (issued January 22, 2019).

23

See M.J., Docket No. 19-1979 (issued August 12, 2020); R.R., Docket No. 18-1562 (issued February 22, 2019).

24

P.C., Docket No. 18-1703 (issued March 22, 2019).

25

See T.W., Docket No. 18-0821 (issued January 13, 2020).

6

The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 26
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work on October 15, 2020 causally related to her accepted August 19, 2020 employment injury.
The Board also finds that OWCP properly determined that she has not met her burden of proof to
expand the acceptance of the claim to include a head injury causally related to the accepted
August 19, 2020 employment injury. The Board further finds that OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2020, and March 5 and 8, 2021
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 10, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

26

J.B., supra note 21; D.G., Docket No. 19-1348 (issued December 2, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Key West, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1924
Issued: December 20, 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 July 13, 2007 appellant filed a timely appeal from an April 19, 2007 decision of the
Office of Workers’ Compensation Programs, denying his request for reconsideration. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board also has jurisdiction over a March 22, 2007
decision adjudicating his claim for a schedule award.
ISSUES
The issues are: (1) whether appellant has any ratable hearing loss which entitles him to a
schedule award; and (2) whether the Office abused its discretion in denying appellant’s request
for reconsideration.
FACTUAL HISTORY
On November 22, 2006 appellant, then a 59-year-old supervisory firefighter, filed an
occupational disease claim alleging that he sustained bilateral hearing loss due to exposure to jet
engine noise and other hazardous noise at work.

On February 20, 2007 the Office referred appellant, together with a statement of accepted
facts and a list of questions, to Dr. R. Michael Loper, an otolaryngologist, for an examination on
March 8, 2007. Dr. Loper found that appellant had bilateral mild to moderately severe high
frequency sensorineural hearing loss caused by noise exposure at work. Audiometric testing
performed on March 8, 2007 revealed, at the frequency levels of 500, 1,000, 2,000 and 3,000
cycles per second (cps): right ear decibel losses of 5, 0, 5 and 15; left ear decibels of 5, 5, 5 and
25. Dr. Loper stated that the audiometric test results were valid and representative of appellant’s
hearing sensitivity. He noted that appellant experienced occasional ringing in his ears.
Dr. Loper indicated that no previous audiometric results were available for his review.
On March 19, 2007 the employing establishment submitted information regarding
appellant’s hearing loss claim. On February 20, 2007 A.M. Hayes, an employing establishment
audiologist, stated that appellant was exposed to hazardous noise while working as a firefighter.
He indicated that audiologic records revealed that his hearing had progressed from mild high
frequency hearing loss in both ears in 1987 to moderately severe noise-induced hearing loss in
the right ear and severe noise-induced hearing loss in the left ear. The employing establishment
provided audiometric test results obtained by technicians between 1987 and 2006. The test
results were not certified by a physician.
On March 21, 2007 Dr. A.E. Anderson, Jr., an Office medical adviser, reviewed the
results of the audiometric testing performed for Dr. Loper and applied the Office’s standardized
procedures. He totaled the decibel losses of 5, 0, 5 and 15 in the right ear for the frequency
levels of 500, 1,000, 2,000 and 3,000 cps at 25 decibels and divided by 4 to obtain the average
hearing loss of 6.25 decibels. This average was then reduced by 25 decibels to equal 0 decibels
which was multiplied by the established factor of 1.5 to compute 0 percent impairment in the
right ear. Dr. Anderson totaled the losses of 5, 5, 5 and 25 in the left ear at 40 decibels and
divided by 4 to obtain the average hearing loss of 10 decibels. This average was then reduced by
25 decibels to equal 0 decibels which was multiplied by the established factor of 1.5 to compute
0 percent impairment in the left ear. Dr. Anderson indicated that appellant had no ratable
binaural hearing loss, according to the standardized Office procedures for determining
entitlement to a schedule award. He indicated that a hearing aid was not authorized.
By decision dated March 22, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that he had no ratable hearing loss. The Office also denied medical
benefits, noting that the weight of the medical evidence established that he would not benefit
from hearing aids.
Appellant requested reconsideration. He indicated that Dr. Loper did not compare
previous audiometric test results to his March 8, 2007 test results. Appellant submitted a copy of
a February 14, 2007 memorandum from a Joseph Whalen and the February 20, 2007
memorandum from Mr. Hayes which were previously of record.
On April 19, 2007 the Office denied appellant’s reconsideration request on the grounds
that the evidence submitted did not warrant further merit review of his claim.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulations as the appropriate standard for evaluating losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A, Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added up and averaged.5 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.6 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.7 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.8 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.9
ANALYSIS -- ISSUE 1
The Office’s medical adviser reviewed the results of the audiometric testing performed
on March 8, 2007 for Dr. Loper and properly applied the Office’s standardized procedures. He
totaled the decibel losses of 5, 0, 5 and 15 in the right ear for the frequency levels of 500, 1,000,
2,000 and 3,000 cps at 25 decibels and divided by 4 to obtain the average hearing loss of
6.25 decibels. This average was then reduced by 25 decibels to equal 0 decibels which was
multiplied by the established factor of 1.5 to compute a 0 percent impairment in the right ear.
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.

4

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

5

Id.

6

Id.

7

Id.

8

Id.

9

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

3

The Office medical consultant totaled the losses of 5, 5, 5 and 25 in the left ear at 40 decibels and
divided by 4 to obtain the average hearing loss of 10 decibels. This average was then reduced by
25 decibels to equal 0 which was multiplied by the established factor of 1.5 to compute an
0 percent impairment in the left ear. The Office medical adviser indicated that appellant had no
ratable binaural hearing loss, according to the standardized Office procedures for determining
entitlement to a schedule award. The Board finds that the Office medical adviser correctly
determined that appellant had no ratable hearing loss.10
The audiometric test results from the employing establishment dated 1987 to 2006 do not
meet the Office’s criteria to establish an employment-related loss of hearing. The audiometric
test results were not certified by a physician as being accurate. The Office does not have to
review every uncertified audiogram, which has not been prepared in connection with an
examination by a medical specialist.11
On appeal, appellant indicates that the February 20, 2007 memorandum from the
employing establishment audiologist is relevant to his claim for hearing impairment. The
audiologist indicated that appellant’s hearing loss had progressed from mild high frequency
hearing loss in both ears in 1987 to moderately severe noise-induced hearing loss in the right ear
and severe noise-induced hearing loss in the left ear. As noted, a schedule award for hearing
impairment is based on the standards and procedures contained in the A.M.A., Guides using the
decibel losses for each ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps. The audiologist
did not provide current audiometric data required for application of the A.M.A., Guides.
Additionally, the audiologist’s memorandum does not comply with several other Office
requirements for a hearing loss impairment rating such as an otologic examination performed by
a certified otolaryngologist.12 For these reasons, the audiologist’s memorandum is not sufficient
to establish the degree of appellant’s hearing impairment.

10

The Board notes that Dr. Loper included a finding of occasional ringing in appellant’s ears. This condition is
called tinnitus. The A.M.A, Guides allows for compensation of up to five percent for tinnitus “in the presence of
measurable hearing loss if the tinnitus impacts the ability to perform activities of daily living.” A.M.A., Guides 246;
Leslie M. Mahin, 55 ECAB 311 (2004). The Board has held that there is no basis for paying a schedule award for a
condition such as tinnitus unless the medical evidence establishes that the condition caused or contributed to a
permanent and ratable loss of hearing under the Act’s schedule award provisions. Donald A. Larson, 41 ECAB 947
(1990); Charles H. Potter, 39 ECAB 645 (1988). The medical evidence in this case does not establish that appellant
has a tinnitus condition that caused or contributed to a permanent and ratable loss of hearing. Consequently,
appellant is not entitled to a schedule award for a tinnitus condition.
11

See Robert E. Cullison, 55 ECAB 570 (2004).

12

See Vernon Brown, 54 ECAB 376 (2003).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act13 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation. The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not
previously considered by the Office; or (3) constitutes relevant and new pertinent evidence not
previously considered by the Office.14 When an application for review of the merits of a claim
does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.15
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, appellant asserted that Dr. Loper did not
compare previous audiometric test results to the March 8, 2007 testing. In its referral, the Office
asked Dr. Loper to comment on appellant’s hearing at the beginning of his noise exposure at
work and compare the earlier audiometric findings to the present findings, if the earlier
audiometric data was available. The data was not available to Dr. Loper because it was not
submitted by the employing establishment prior to his examination of appellant. In this case,
Dr. Loper found that appellant’s hearing loss was work related. The remaining issue was
whether appellant’s hearing loss was ratable according to the Office’s standardized procedures
for determining hearing loss impairment. The earlier audiometric test results did not meet the
Office’s standardized procedures and criteria to establish a ratable loss of hearing.
Consequently, appellant’s argument, that Dr. Loper did not consider early audiometric test
results, does not constitute relevant and pertinent evidence or relevant legal argument not
previously considered by the Office. He also submitted documents previously of record.
Because these documents were previously reviewed, they do not constitute relevant and pertinent
evidence not previously considered by the Office.
The Board finds that appellant did not submit arguments or evidence: showing that the
Office erroneously applied or interpreted a specific point of law, advancing a relevant legal
argument not previously considered or constituting relevant and new pertinent evidence not
13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b)(2).

15

Id. at § 10.608(b).

5

considered previously by the Office. Therefore, the Office properly denied his request for
reconsideration.
CONCLUSION
The Board finds that appellant has no ratable hearing loss entitling him to a schedule
award. The Board further finds that the Office did not abuse its discretion in denying his request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 19 and March 22, 2007 are affirmed.
Issued: December 20, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LONG BEACH VETERANS
ADMINISTRATION MEDICAL CENTER,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 19-0040
Issued: May 21, 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 October 10, 2018 appellant filed a timely appeal from an August 2, 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 her burden of proof to establish intermittent
disability for the period June 10 through July 13, 2016.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 20, 2016 appellant, then a 57-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that she had difficulty breathing, neck, back, and hip pain, and
abrasions to the left breast and right abdomen as a result of a motor vehicle accident. The accident
occurred that day when she was a passenger in an employing establishment vehicle that was hit by
another car. Appellant stopped work. OWCP accepted strain of muscle at neck and strain of
muscle of lower back. She received continuation of pay from April 21 to May 27, 2016.
Appellant accepted a full-time modified job offer of counseling and case management on
May 26, 2016, with restrictions of no pushing, pulling, lifting, squatting, or bending. She filed a
claim for compensation (Form CA-7) for intermittent compensation for the period June 10 to
July 13, 2016 in which she requested: 8 hours compensation on June 10 and 13, 2016 for doctor
visit and off duty; 3.5 hours for physical therapy on June 16, 2016, 3 hours for physical therapy on
June 20, 2016; 2.5 hours compensation for a magnetic resonance imaging (MRI) scan on June 22,
2016; 2.5 hours compensation for physical therapy on June 23, 2016; 5.5 hours compensation for
a doctor visit on June 24, 2016; 40 hours compensation for the period June 27 to July 1, 2016 for
doctor visits, physical therapy, and off duty; 40 hours compensation for the period July 4 to 8,
2016 for physical therapy, and off duty; and 24 hours compensation for July 11 to 13, 2016 for
doctor visit.
Appellant saw Dr. Thomas Ryu,3 an attending osteopath, on June 10, 2016. Dr. Ryu noted
diagnoses of neck strain, back, strain, and sciatica, took appellant off work because she was not
improving as expected, and recommended further studies. On June 13, 2016 he advised that
appellant could return to light-duty work. A director at Weststar Physical Therapy advised that
appellant attended physical therapy there on June 20, 2016. An MRI scan of the lumbar spine was
done on June 22, 2016. It demonstrated straightening of lumbar lordosis, disc protrusions at L2-3,
L4-5, and L5-S1 with foraminal narrowing and disc desiccation.
Appellant again saw Dr. Ryu on June 24, and July 1 and 13, 2016. Dr. Ryu reported that
her neck and back pain were worse despite physical therapy, described lumbar spine tenderness
on examination, reviewed the MRI scan, and added the diagnosis of stress. He referred her to
psychology and orthopedics and advised that appellant should remain off work until July 27, 2016.
On July 28, 2016 OWCP paid appellant compensation for 14.5 hours: 4 hours each for
June 10, 13, and 24, 2016 and 2.5 hours for June 22, 2016. Appellant accepted a modified job
offer on July 29, 2016.

2

Docket No. 17-0323 (issued July 7, 2017).

3

Dr. Ryu practices at an urgent care center.

2

An August 2, 2016 billing statement from Weststar Physical Therapy showed that appellant
had physical therapy on June 16, 20, 23, 27, and July 1 and 5, 2016.
By decision dated September 16, 2016, OWCP denied appellant’s claim for compensation
for 122.50 hours of wage loss from June 10 to July 13, 2016 and total disability compensation
from July 14 to 27, 2016. It found there was either no medical evidence and/or insufficient
medical evidence to pay compensation for the additional hours claimed, and that the medical
evidence did not establish continued disability from work.
OWCP issued a second decision that day, denying appellant’s claim for a dental condition
caused by the April 20, 2016 motor vehicle accident.
On November 29, 2016 appellant filed an appeal with the Board. By decision dated July 7,
2017, the Board found that she had not met her burden of proof to establish a dental condition
caused by an accepted April 20, 2016 employment injury or that she was totally disabled for the
period July 14 to 27, 2016 due to the accepted conditions. The Board further found the case not
in posture for decision regarding claimed disability for the period June 10 to July 13, 2016. The
Board remanded the case for OWCP to request documentation from the employing establishment
regarding appellant’s work status beginning June 10, 2016 with specific information regarding the
days and hours worked, to be followed by an appropriate decision on the disability claimed for this
period.4
During the pendency of appellant’s appeal with the Board, on March 10, 2017 OWCP paid
appellant 44 hours of intermittent compensation for the period July 29 through September 7, 2016.
Following the Board’s July 7, 2017 decision, by letter dated August 9, 2017, OWCP asked
the employing establishment to provide a daily breakdown of appellant’s work status during the
period June 10 to July 13, 2016.
On August 25, 2017 the employing establishment forwarded documentation of appellant’s
work from June 10 through July 21, 2016. Absences were as follows: June 10, 2016 -- 8 hours;
June 13, 2016 -- 8 hours; June 16, 2016 -- 3.5 hours; June 20, 2016 -- 3 hours; June 22, 2016 -- 2.5
hours; June 23, 2016 -- 2.5 hours; and June 24, 2016 -- 5.5 hours.
For the period June 27 to July 21, 2016, she was absent eight hours daily.
In correspondence dated August 28, 2017, OWCP informed appellant that, regarding her
claimed compensation for the period June 10 to July 13, 2016, it had received evidence supporting
her attendance at medical appointments on June 10, 13, 22, 24, and July 11 and 13, 2016. It asked
her for evidence supporting the additional claimed absences and afforded her 30 days to respond.
Appellant forwarded documentation that she attended physical therapy on June 16
and 20, 2016.

4

Supra note 2.

3

By decision dated September 29, 2017, OWCP noted that appellant had previously been
paid compensation for medical visits on June 10, 13, 22, and 24, 2016. It found that she was
entitled to an additional 14.5 hours of compensation for June 16 and 20, and July 11 and 13, 2016.
As noted above, appellant had previously received disability compensation for 4 hours each
on June 10, 13, and 24, 2016 and 2.5 hours on June 22, 2016. On September 29, 2017 OWCP paid
appellant compensation for an additional 14.5 hours. This included 3.5 hours on June 16, 2016; 3
hours on June 20, 2016; and 4 hours each on July 11 and 13, 2016.
On October 20, 2017 appellant requested a review of the written record with a
representative of OWCP’s Branch of Hearings and Review. She resubmitted Dr. Ryu’s July 1,
2016 report.
By decision dated March 14, 2018, an OWCP hearing representative affirmed the
September 29, 2017 decision. He found that, although Dr. Ryu provided brief opinions indicating
that appellant was totally disabled from work, he failed to supply sufficient medical rationale to
establish such disability.
On May 4, 2018 appellant requested reconsideration. She asserted that her medical
appointments were not routine, and that she had to drive long distances in California traffic to
reach them.
In an attached April 26, 2018 statement, Dr. Ryu indicated that he first saw appellant on
June 10, 2016 when he placed her on temporary total disability until June 13, 2016 because her
neck and lumbar pain had worsened and physical therapy had not been approved. He wrote that
when he next saw her on June 13, 2016 he advised that she could return to modified duty, and
when he saw her on June 24, 2016 her back pain had worsened and was radiating into her left foot.
Dr. Ryu noted that appellant felt that she had post-traumatic stress disorder (PTSD), and an MRI
scan demonstrated a disc protrusion at L5-S1. He placed her on temporary total disability because
her pain had worsened despite treatment and recommended an orthopedic referral. Dr. Ryu noted
that he next saw appellant on July 1, 2017 when, despite up to 18 sessions of physical therapy, her
back pain was worse, causing her to limp. He recommended continued total disability. Dr. Ryu
related that he last saw appellant on July 13, 2016 when he kept her on total disability for two more
weeks.
By decision dated August 2, 2018, OWCP denied modification of its prior decision. It
found the medical evidence of record did not contain a sufficient explanation showing how the
accepted conditions objectively worsened such that appellant was no longer able to continue to
work modified duties.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.6 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.7 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.9 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by a preponderance of the reliable, probative and substantial medical
evidence.10
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.11 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
incident. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.12 Neither the mere fact that a disease
or condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.13

5

Supra note 1.

6

See D.W., Docket No. 18-0644 (issued November 15, 2018).

7

Id.

8

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

9

Id.

10

T.O., Docket No. 17-1177 (issued November 2, 2018).

11

D.W., Docket No. 18-0644 (issued November 15, 2018).

12

C.B., Docket No. 18-0633 (issued November 16, 2018).

13

Supra note 11.

5

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.14
OWCP’s procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed.15 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.16 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable.17 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.18 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care. The
claims for wage loss should be considered on a case-by-case basis.19
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
disability for the period June 10 to July 13, 2016 causally related to the April 20, 2016 employment
injury.
Medical evidence relevant to this period includes reports from Dr. Ryu dated June 10 to
July 13, 2016. Dr. Ryu initially took appellant off work on June 10, 2016 because she was not
improving as expected and recommended further studies. He continued to advise that she remain
off work until July 27, 2016.
In his April 26, 2018 statement, Dr. Ryu described appellant’s treatment beginning
June 10, 2016 when he placed her on temporary total disability. He advised that this was done
because her pain had worsened despite treatment and that when he saw her on July 1, 2017, despite
having up to 18 sessions of physical therapy, her back pain was worse and caused her to limp.

14

See B.K., Docket No. 18-0386 (issued September 14, 2018).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
16

Id. at Chapter 2.901.19.a; see E.W., Docket No. 17-1988 (issued January 28, 2019).

17

Id. at Chapter 2.901.19.a(2).

18

Id. at Chapter 2.901.19.a(3).

19

Id. at Chapter 2.901.19.c.

6

Dr. Ryu noted that when he last saw her on July 13, 2017, her symptoms continued and he kept
her on total disability for two more weeks.
The accepted conditions are neck and lumbar strains caused by an April 20, 2016 motor
vehicle accident. Dr. Ryu did not explain in any of his reports how and/or why these conditions
caused appellant’s continued disability. He did not explain the mechanics of how the April 20,
2016 employment injury caused his diagnosed condition of sciatica. Furthermore, Dr. Ryu did not
exhibit any knowledge of the modified duties appellant was performing in June 2016 or explain
why she could not work due to the accepted conditions.20
The issue of whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disability is causally related to employment factors
and supports that conclusion with sound medical reasoning.21 Dr. Ryu did explain why the
accepted conditions prevented appellant from performing her modified job duties when she
stopped work. As he provided insufficient medical rationale to support that appellant was totally
disabled due to the accepted neck and lumbar strains caused by the April 20, 2016 motor vehicle
accident, his opinion is insufficient to meet appellant’s burden of proof to establish that appellant
was totally disabled for the period June 10 through July 13, 2016.22
The record contains evidence, however, that appellant was examined by Dr. Ryu on July 1,
2016, a date she was scheduled for work. OWCP did not compensate her for a medical visit that
day. The case will therefore be remanded for payment for the appropriate amount of wage-loss
compensation for medical appointments.
On appeal appellant contends that she is entitled to more than the four hours paid for wage
loss for attending medical appointment due to travel. As noted, a claimant may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location. As a rule, no more than four hours of
compensation or continuation of pay should be allowed for routine medical appointments. Longer
periods of time may be allowed when required by the nature of the medical procedure and/or the
need to travel a substantial distance to obtain the medical care.23 Appellant, however, has not
submitted evidence to support entitlement to monetary compensation greater than that paid.
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.

20

See M.S., Docket No. 18-0877 (issued November 21, 2018).

21

See M.C., Docket No. 18-1391 (issued February 1, 2019).

22

See supra note 20.

23

Supra note 19; see also G.J., Docket No. 18-1335 (issued March 22, 2019).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
disability for the period June 10 through July 13, 2016 due to accepted conditions. The Board
further finds that upon return of the case record to OWCP, it shall pay appellant compensation for
a medical appointment with Dr. Ryu on July 1, 2016.
ORDER
IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for payment pursuant to this decision.
Issued: May 21, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Savannah, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Susan M. Cordero Ladner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1711
Issued: December 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2014 appellant, through counsel, filed a timely appeal from a March 28,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration. The last merit decision was dated November 19, 2013. Because
more than 180 days elapsed between the last merit decision to the filing of this appeal, and
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On August 30, 2012 appellant, then a 49-year-old customs and border protection officer,
filed a traumatic injury claim (Form CA-1) alleging that on August 28, 2012 he sustained a lower
back injury while lifting boxes for storage. He notified his supervisor and first sought medical
treatment on the date of injury.
By letter dated October 3, 2012, OWCP informed appellant that the evidence of record
was insufficient to establish his claim and requested additional factual and medical evidence.
Appellant submitted September 4 and 18, 2012 notes excusing him from work, a
September 6, 2012 attending physician’s report (Form CA-20) from Dr. Luis A. Perez, Boardcertified in internal medicine and an October 16, 2012 Form CA-20 from Dr. Luis J. Goveo
Ortiz, Board-certified in internal medicine.
By decision dated November 13, 2012, OWCP denied appellant’s claim as he had failed
to submit any medical evidence containing a medical diagnosis in connection with the accepted
August 28, 2012 employment incident.
By letter dated January 11, 2013, appellant, through counsel, requested reconsideration of
OWCP’s decision and submitted additional evidence in support of his claim.
A November 15, 2011 and September 7, 2012 diagnostic report was provided from
Dr. Luis Bonnet Alemar, a treating physician, who provided findings pertaining to a magnetic
resonance imaging (MRI) scan of the left shoulder and lumbosacral spine.
In an October 25, 2012 report, Dr. Perez reported that he had been treating appellant for
back pain from lifting boxes at work on August 28, 2012 which had since caused him major
depression.
In a January 23, 2013 diagnostic report, Dr. Pablo Rodriguez Ryan, a treating physician,
provided findings pertaining to an electromyograph (EMG) study. In his January 24, 2013
medical report, Dr. Ryan reported that appellant had a history of a low back injury from lifting
heavy boxes at work on August 28, 2012. Upon physical examination and review of diagnostic
testing, he diagnosed lumbar sprain, lumbar myositis, L5-S1 lumbosacral radiculopathy with
active denervation of paraspinal musculature, L5-S1 disc protrusion aggravated by his injury,
and disc bulging L3-L4 aggravated by this accident. Dr. Ryan opined that appellant’s diagnosed
conditions had a direct causal relationship to the August 28, 2012 employment incident.
The remaining evidence submitted included Dr. Ryan’s treatment notes dated January 9,
1998 to September 28, 2011, Dr. Ryan’s December 23, 2008 EMG study, a January 10, 2009
MRI scan of the lumbar spine, an April 19, 2010 MRI scan of the lumbosacral spine, hospital
reports dated October 8 and 18, 2012, and medical reports dated October 6 and November 7,
2012 from Dr. Elias Jimenez Olivo, a treating psychiatrist.
By decision dated November 19, 2013, OWCP affirmed the November 13, 2012 decision,
as modified, finding that the medical evidence of record failed to establish that appellant’s
diagnosed conditions were causally related to the accepted August 28, 2012 employment
incident.
2

By letter dated February 28, 2014, appellant, through counsel, requested reconsideration
of OWCP’s decision and argued that the diagnosed conditions of bilateral L5-S1 radiculopathy,
lumbosacral strain, L5-S1 disc protrusion, and L3-L4 disc bulge were caused by his employment
duties.
In support of his claim, appellant resubmitted Dr. Ryan’s December 23, 2008 and
January 23, 2013 EMG scan study, Dr. Ryan’s treatment notes dated February 25, 2010 to
September 28, 2011, Dr. Alemar’s November 15, 2011 MRI scan of the left shoulder, and
Dr. Ryan’s January 24, 2013 medical report.
By decision dated March 28, 2014, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.4
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his February 28, 2014 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s counsel argued that his injuries were employment related, but the
underlying issue in this case was whether appellant’s injury was causally related to the accepted
August 28, 2012 employment incident. That is a medical issue which must be addressed by
relevant medical evidence.5 Appellant, however, failed to submit new and relevant medical
evidence in support of his claim.
Appellant resubmitted medical reports which were previously addressed and evaluated by
OWCP in its November 19, 2013 merit decision. As the reports repeat evidence already in the
case record, they are duplicative and do not constitute relevant and pertinent new evidence.
3

D.K., 59 ECAB 141 (2007).

4

K.H., 59 ECAB 495 (2008).

5

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

3

Material which is duplicative of that already contained in the case record does not constitute a
basis for reopening a case. A claimant may obtain a merit review of an OWCP decision by
submitting new and relevant evidence. In this case, appellant failed to submit any new and
relevant evidence addressing causal relationship.6
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6

M.H., Docket No. 13-2051 (issued February 21, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE ARMY, PUBLIC
WORKS, OPERATIONS & MAINTENANCE
DIVISION, FORT DRUM, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-507
Issued: August 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 10, 2007 appellant filed an appeal from a November 26, 2007 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he had any employment-related disability
beginning January 26, 2007.
FACTUAL HISTORY
On March 14, 2006 appellant, then a 63-year-old seasonal motor vehicle operator,
sustained a right hand crush injury and right metacarpal fracture of the ring finger when a dump
truck door fell.1 He stopped work that day and underwent surgical repair by Dr. Arthur C.
1

Appellant’s appointment was not to exceed March 26, 2006.

Peckham, a Board-certified orthopedic surgeon. Appellant received continuation of pay and
wage-loss compensation.
By report dated May 17, 2006, Dr. Peckham advised that appellant could return to work
eight hours a day with a 10-pound lifting restriction. He referred appellant to Dr. Walter Short,
Board-certified in orthopedic hand surgery. In a July 13, 2006 report, Dr. Short noted the history
of injury and appellant’s complaint that he had incomplete mobility and stiffness of the right
hand with strenuous use. Examination of the right hand revealed mild soft tissue swelling and a
flexion contracture of the ring finger with some shortening of the fourth metacarpal and a slight
flexion contracture of the index, middle and little fingers. Dr. Peckham diagnosed crush injury
of the hand. In a July 26, 2006 treatment note, he had noted appellant’s flexion contracture.
Dr. Peckham opined, “I see no reason why [appellant] cannot return to full activities where he
can use the hand for anything and everything that he wants to. I do not think he is going to do
harm. If anything, vigorous work might actually improve his range of motion.”
On August 24, 2006 the Office informed appellant that it proposed to terminate his wageloss compensation on the grounds that Dr. Peckham found that he was no longer disabled from
work. The case would remain open for medical treatment. In an October 2, 2006 treatment note,
Dr. Peckham advised that appellant had no increase in range of motion with a fixed deformity,
noting that his ring and little finger stopped 0.5 centimeters from his palm and that, because of
this, he did not have a good solid grip. He stated that appellant did not have any pain although
he had noticed when painting with a roller, his decreased grip put extra stress on the wrist.
Dr. Peckham stated that appellant would like to return to work driving heavy equipment,
advising that, “if he feels that he can continue to get along with the hand as it is, then he probably
will just live with it. On the other hand, if he feels that he has significant difficulty doing his
job ... then he may wish to proceed with surgery.”
By decision dated November 8, 2006, the Office finalized the termination, effective that
day. The cover letter indicated that wage-loss benefits alone were terminated, but the attached
decision indicated that both medical and wage-loss compensation were terminated. On
November 13, 2006 appellant returned to a seasonal position as a motor vehicle operator. The
appointment was not to exceed March 17, 2007. On November 20, 2006 appellant requested a
hearing.
The employing establishment submitted an accident report dated January 19, 2007,
indicating that appellant backed a truck snowplow into two vehicles and was cited for backing
without a ground guide. An employing establishment memorandum dated January 23, 2007
recommended that he be terminated.
On January 25, 2007 appellant called the Office and was informed that his case remained
open for medical benefits only. He resigned from the employing establishment that day,
declaring that he was resigning due to the March 14, 2006 crush injury. Appellant stated, “I find
it difficult to perform my duties as I am in constant pain when using my right hand. I am having
a great deal of difficulty compensating for the pain and stiffness in my hand.”
In a January 29, 2007 treatment note, Dr. Peckham advised that appellant reported that he
could not work because it was cold, that he could not lubricate his gear and had trouble getting

2

up in and out of vehicles because of hand pain. He noted that appellant continued to have
decreased range of motion with a flexion contracture and opined that he was not sure his
condition could be improved. Dr. Peckham concluded, “as such, because of the amount of
discomfort [appellant] has at this time, I think he should remain off work” and recommended that
he return to see Dr. Short. In an attending physician’s report dated January 31, 2007, he
diagnosed open fracture of the metacarpal shaft, checked the yes box, indicating that the
condition was employment related and advised that appellant was totally disabled from
January 29 until March 1, 2007. On a duty status report, Dr. Peckham advised that appellant was
totally disabled.
By letter dated February 1, 2007, the employing establishment controverted the claim,
advised that appellant was facing a disciplinary removal when he resigned. In statements dated
January 29 and 30, 2007 statement, supervisors Donald Paige, Jr., Keith Philo, and David J.
Gerrish advised that appellant had not complained about his hand prior to the January 19, 2007
motor vehicle accident.
On March 8, 2007 appellant filed a Form CA-2a recurrence of disability claim, alleging
that he sustained a recurrence of disability on January 26, 2007 because he had difficulty
entering and exiting large runway sweepers and plows due to constant pain and stiffness in the
ring and little finger of his right hand. He stated that he had difficulty gripping the handrail
when getting into large snow plow equipment, had pain and difficulty manipulating controls, that
the grip on his right hand was limited due to pain and he could not make a grip with his right
hand. The employing establishment noted that appellant had never notified a supervisor of any
problems with his hand.
By letter dated April 9, 2007, the Office informed appellant that his eligibility for wageloss and medical benefits had been terminated and his recurrence claim would not be
adjudicated. In a May 24, 2007 treatment note, Dr. Peckham noted that appellant, who is righthand dominant, continued to have difficulty gripping objects such as hammers due to the flexion
contracture of his right ring and little fingers, causing diminished grip strength. He advised that
appellant had 5+ strength of the two fingers but only 4+ grip and concluded that he had a
“significant degree” of permanent loss of use of the right hand but through surgery might
improve his condition and referred him to a hand surgery.
A telephonic hearing was held on May 31, 2007. Appellant testified that it was hard
climbing in the truck because of loss of grip strength and that the cold bothered him. He advised
that he had not worked since January 2007 but was retired from the State of New York and had
not seen a hand surgeon because he was told that his case was closed. In a statement received on
June 25, 2007, Mr. Gerrish reiterated that appellant’s dismissal was going forward when he
resigned and that he had not reported any complaints regarding his hand injury to a supervisor.
The employing establishment also submitted appellant’s preemployment physical dated
October 11, 2006 in which he noted that he did not have a physical impairment that would
interfere with the full performance of his duties and Captain Paul T. Ciechoski, a physician’s
assistant, advised that appellant passed his preemployment physical.
By decision dated August 23, 2007, an Office hearing representative remanded the case
to the Office. He noted that, in his July 26, 2006 report, Dr. Peckham only released appellant to

3

work conditionally and it was therefore inappropriate for the Office to terminate appellant’s
wage-loss benefits on a permanent basis on November 8, 2006.
The Office hearing
representative further found that the Office properly found that appellant was not entitled to
wage-loss compensation for the period November 13, 2006 through January 26, 2007 when he
worked but that the Office had improperly informed him that he was barred from future wageloss compensation. The case was remanded to the Office to determine if appellant sustained a
recurrence of disability on January 26, 2007 that would entitle him to wage-loss benefits and to
reinstate his medical benefits.2
On October 23, 2007 the Office informed appellant of the evidence needed to support his
recurrence claim. This was to include his detailed description of the specific activities he was
engaged in when he sustained the recurrence on January 26, 2007. Appellant was to provide a
physician’s report with detailed medical findings before and after the recurrence and a firm
diagnosis. In reports dated November 7, 2007, Dr. Peckham advised that all appellant’s physical
findings were directly related to his original injury, that he had not had a recurrence and that he
had a permanent partial impairment of a “fairly severe degree.” He concluded that extensor
tendon surgery might provide some improvement.
By decision dated November 26, 2007, the Office found that appellant did not sustain a
recurrence of disability on January 26, 2007.
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 A recurrence of medical condition means a documented need for further
medical treatment after release from treatment for the accepted condition or injury when there is
no accompanying work stoppage. Continuous treatment for the original condition or injury is
not considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.4
Section 10.5(f) of Office regulations defines the term “disability” as the incapacity,
because of an employment injury, to earn the wages that the employee was receiving at the time
of injury.5 Disability is thus not synonymous with physical impairment, which may or may not
result in an incapacity to earn wages. An employee who has a physical impairment causally
related to a federal employment injury, but who nevertheless has the capacity to earn the wages
he or she was receiving at the time of injury, has no disability as that term is used in the Federal
Employees’ Compensation Act.6 When however the medical evidence establishes that the
2

The hearing representative further found that a one-time visit to Dr. Short should be approved.

3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Id. at § 10.5(y); see Mary A. Ceglia, 55 ECAB 626 (2004).

5

Id. at § 10.5(f); see W.P., 59 ECAB ____ (Docket No. 08-202, May 8, 2008).

6

Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in his or her employment, the employee is entitled to compensation
for any loss of wage-earning capacity resulting from the employment injury.7 Whether a
particular injury causes an employee to be disabled for employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.8
The employee has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury and
should submit a detailed medical report.9 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 factual and medical
background, supporting such a causal relationship.10 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.11 Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.12
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.13
ANALYSIS
The Board finds that appellant has not established that his claimed disability beginning
January 26, 2007 was caused by the accepted right hand condition. The issue of whether a
claimant’s disability is related to an accepted condition is a medical question which must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that

7

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

8

Tammy L. Medley, 55 ECAB 182 (2003).

9

20 C.F.R. § 10.404(b).

10

Jennifer Atkerson, 55 ECAB 317 (2004).

11

Id.

12

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

13

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

5

conclusion with sound medical reasoning.14 Medical opinion evidence must be of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.15
In reports dated May 24 and November 7, 2007, Dr. Peckham advised that appellant
continued to have a flexion contracture with loss of use of the right hand with a significant
permanent partial impairment and surgery might be helpful, but he did not provide an opinion
regarding the origin of the diagnosed condition. The Board has long held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.16 These reports are therefore insufficient to
meet appellant’s burden of proof. While in reports dated January 29 and 31, 2007, Dr. Peckham
concluded that appellant could not work, these reports also are of diminished probative value. In
his January 29, 2007 report, he noted appellant’s complaints that he could not work due to the
cold, could not lubricate his gear and had trouble getting in and out of vehicles and provided
physical findings of decreased range of motion with a flexion contracture. Dr. Peckham
concluded that, because of the discomfort appellant had, he should remain off work. In a
January 31, 2007 report, he advised that appellant was totally disabled from January 29 to
approximately March 1, 2007. In these reports, there is no indication that Dr. Peckham was
aware of the physical requirements of appellant’s job or the actual duties he performed as a
motor vehicle operator and he did not explain why the physical findings of decreased range of
motion and flexion contracture kept appellant from working. The Board therefore finds that his
opinion that appellant should remain off work is of insufficient rationale to establish that
appellant was totally disabled from his seasonal position as a motor vehicle operator beginning
January 26, 2007.17 As appellant did not submit medical evidence sufficient to establish his
claim, he did not meet his burden of proof to establish that he sustained a recurrence of total
disability on January 26, 2007 and the Office properly denied his claim.18 The case remains
open for medical benefits.
The Board however notes that, by decision dated August 23, 2007, an Office hearing
representative reversed the Office’s termination of wage-loss compensation effective
November 8, 2006. Appellant did not return to work until November 13, 2006. He would
therefore be entitled to wage-loss compensation for this brief period. Furthermore, on appeal

14

Sandra D. Pruitt, 57 ECAB 126 (2005).

15

Roy L. Humphrey, 57 ECAB 238 (2005).

16

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

17

Cecelia M. Corley, 56 ECAB 662 (2005).

18

Tammy L. Medley, supra note 8.

6

appellant contends and the record supports, that he has a permanent partial impairment of the
right hand, although further surgery may be contemplated.19 The record before the Board does
not contain a schedule award claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a recurrence of total disability on January 26, 2006. Appellant is entitled to wage-loss
compensation for the period November 8 to 12, 2006, his claim remains open for medical
benefits and he has the right to file a schedule award claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs November 26, 2007 be affirmed.
Issued: August 12, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

19

Under 5 U.S.C. § 8107(a) a compensation schedule was enacted, providing that, if there is permanent disability
involving the loss or loss of use of a member or function of the body or involving disfigurement, the employee is
entitled to basic compensation for the disability. As interpreted by the Office and Board, the “permanent disability”
described under this section is known as “permanent impairment.” Carol T. Collins (Harold Turner), 54 ECAB
417 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________
Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 12-696
Issued: July 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 8, 2012 appellant, through her attorney, filed an application for review of a
November 23, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), claim
number xxxxxx960, which denied modification of an August 30, 2010 decision that denied
appellant’s claim for an occupational disease.1 The appeal was docketed as number 12-696.
In the November 23, 2011 decision, OWCP noted that appellant had submitted certain
evidence including a recurrence claim form from another claim file number xxxxxx597. It
advised that “on the recurrence claim form of November 4, 1999 for case number xxxxxx597,
the claimant indicated that … she started having pains in her right knee, right hip and lower
back.” OWCP’s claims examiner noted reviewing correspondence and decisions in the other
claim file stating that “Per review of case number xxxxxx597 (now doubled with case number
xxxxxx030), the claim for recurrence received on November 4, 1999 was accepted for the right
knee condition only. By letter dated January 21, 2000 OWCP advised the claimant that she had

1

On May 28, 2010 appellant alleged that she developed low back pain and nerve damage to her leg following
surgery on her right knee under a separate claim, number xxxxxx030, which was accepted for fracture of the right
tibia and fibula and torn lateral meniscus of the right knee.

not met her burden of proof to show that her low back and feet conditions were related to the
accepted work injury.”2
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, case number xxxxxx960, involves appellant’s claim for an
occupational disease involving the low back, specifically alleging that, after her second knee
surgery accepted under claim number xxxxxx030, she developed low back pain. In the
November 23, 2011 decision, OWCP noted reviewing evidence and findings made in claim
number xxxxxx597 in reaching its decision. The evidence also indicates that file number
xxxxxx597 may have evidence germane to claim number xxxxxx960.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, OWCP claims with evidence germane to appellant’s low
back conditions should be combined pursuant to OWCP procedures.3 This will allow OWCP to
consider all relevant claim files in developing appellant’s claim. Moreover, to consider
appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in this case
and raise the possibility of inconsistent results. It is the Board’s policy to avoid such an
outcome.4
The case will be remanded to OWCP to combine case files numbers xxxxxx960,
xxxxxx597 and xxxxxx030. Following this and such other development as deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s claim.

2

The complete medical records and factual information pertaining to these claims are not in the record before the
Board.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the November 23, 2011 decision be set aside and
the matter remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order.
Issued: July 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3