United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 12-1809
Issued: March 25, 2013

Case Submitted on the Record

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

JURISDICTION
On August 24, 2012 appellant filed a timely appeal from an April 17, 2012 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 issue is whether appellant has established that he sustained more than a 25 percent
binaural hearing permanent impairment in the performance of duty.
On appeal, appellant asserts that he is entitled to additional compensation beyond the
period of the schedule award as the accepted hearing loss affected him permanently.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before January 1, 1988 appellant, then a 42-year-old materials
handler and forklift operator, sustained a bilateral sensorineural hearing loss due to hazardous
noise exposure at work. He remained exposed to hazardous noise until his retirement from the
employing establishment on June 3, 2005. Appellant submitted annual employing establishment
audiograms from 1985 to November 2004 obtained as part of a hearing conservation program.
These audiograms show a progressive bilateral hearing loss. Employing establishment
dispensary personnel counseled appellant regarding the progression of his bilateral hearing loss
on December 30, 1997, December 3, 2003 and January 14, 2004.
On August 19, 2011 appellant claimed a schedule award.
On October 7, 2011 OWCP referred appellant to Dr. Eugenia Gray, a Board-certified
otolaryngologist, for a second opinion examination. A statement of accepted facts noting
hazardous occupational noise exposure was provided for the physician’s review.
In an October 21, 2011 report, Dr. Gray diagnosed occupationally related bilateral low,
mid and high frequency sensorineural hearing losses, with a possible left retrocochlear
abnormality on the left accounting for an asymmetric high frequency hearing loss. Testing for
the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps)
revealed decibel losses of 30, 40, 45 and 50 respectively. Testing for the left ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 30, 45, 45 and 60 decibels.
Referring to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Gray found a 24.375 percent right monaural
impairment, a 30 percent left monaural impairment, resulting in a 25.3125 percent binaural
permanent impairment. She recommended bilateral hearing aids.
OWCP referred Dr. Gray’s reports and the medical record to an OWCP medical adviser
for an impairment rating. In a December 19, 2011 report, an OWCP medical adviser concurred
with Dr. Gray’s diagnosis of a work-related bilateral hearing loss. He found that appellant had
attained maximum medical improvement as of October 21, 2011, the date of Dr. Gray’s
examination. The medical adviser totaled the decibel losses for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps of 30, 40, 45 and 50 to equal 165. He then divided this
total by 4 to obtain the average hearing loss at those cycles of 41.25 decibels. The average of
41.25 decibels was then reduced by the 25 decibel “fence” to equal 16.25. Multiplying the
balance of 16.25 by 1.5 resulted in a 24.37 percent monaural hearing loss for the right ear. The
medical adviser then totaled the 30, 45, 45 and 60 decibel losses in the left ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps to equal 180. He then divided this total by 4 to obtain
the average hearing loss at those cycles of 45 decibels. The average of 45 decibels was then
reduced by 25 decibels to equal a balance of 20 decibels. Multiplying the balance of 20 decibels
by 1.5 resulted in a 30 percent monaural hearing loss for the left ear. The medical adviser then
multiplied 24.37, the lesser monaural loss, by 5, for a result of 121.85. He then added the greater
monaural loss of 30, to equal 151.85. The medical adviser then divided the result of 151.85 by 6,
to equal a 25.3 percent binaural sensorineural permanent hearing loss. He recommended
bilateral hearing aids.

2

By decision dated April 17, 2012, OWCP issued appellant a schedule award for a 25
percent binaural hearing loss. The period of the award ran for 50 weeks from October 21, 2011
to October 4, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.3
OWCP 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 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.6 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.7 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
ANALYSIS
OWCP accepted that appellant sustained a binaural sensorineural hearing loss due to
hazardous noise exposure at work. To determine her entitlement to a schedule award, it obtained
a second opinion report and audiometric test results from Dr. Gray, a Board-certified
otolaryngologist, who found a 25.3 percent binaural hearing loss due to occupational noise
exposure. OWCP then referred Dr. Gray’s findings to an OWCP medical adviser for calculation
of a schedule award according to the A.M.A., Guides.

2

5 U.S.C. § 8107.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.M.A., Guides 250 (6th ed., 2008).

5

Id.

6

Id.

7

Id.

8

C.C., Docket No. 11-731 (issued October 11, 2011).

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The medical adviser properly applied OWCP’s standardized procedures to the
October 21, 2011 audiogram obtained by Dr. Gray. Testing for the left ear at the frequencies of
500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 30, 45, 45 and 60 dBA, respectively.
These decibel losses were totaled at 180 and divided by 4 to obtain the average hearing loss per
cycle of 45 dBA. The average of 45 was then reduced by the 25 decibel fence to equal 20 dBA
for the left ear.9 Following the same mathematical procedure, the medical adviser totaled the 30,
40, 45 and 50 dBA losses in the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000
cps to equal 165. He divided the total by 4 to obtain the average hearing loss at those cycles of
41.25 decibels, reduced by 25 decibels to equal 16.25.
The binaural hearing loss is determined by calculating the loss in each ear using the
formula for monaural loss; the lesser loss, in this case 24.37, is multiplied by 5, equaling 121.85,
then added to the greater loss of 30 for a sum of 151.85 and the total is divided by 6 to arrive at
the amount of the binaural hearing loss of 25.3 rounded down to 25 percent.10
The Board finds that the medical adviser applied the proper standards to the findings in
Dr. Gray’s October 21, 2011 report and audiogram. The result is a 25 percent binaural hearing
loss. The Board further finds that the medical adviser properly relied upon the October 21, 2011
audiogram as it was part of Dr. Gray’s evaluation and met all OWCP standards.11 Therefore,
OWCP properly found that appellant had a 25 percent binaural hearing loss due to hazardous
noise exposures at work.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, appellant asserts that he is entitled to compensation beyond the period of the
schedule award as the accepted hearing loss affected him permanently. As stated, OWCP
properly applied the appropriate grading schemes of the A.M.A., Guides in rating his accepted
bilateral hearing loss, resulting in a 50-week schedule award period commencing on October 21,
2011, the date of maximum medical improvement.12 Appellant did not submit probative medical
evidence establishing a greater percentage of permanent impairment, which would have resulted
in a longer payment period.

9

The decibel fence is subtracted as it has been shown that the ability to hear everyday sounds under everyday
listening conditions is not impaired when the average of the designated hearing levels is 25 dBA or less. See
A.M.A., Guides 250.
10

The policy of OWCP is to round the calculated percentage of impairment to the nearest decimal point. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.b (June 2003).
11

See Federal (FECA) Procedure Manual, id. at Requirement for Medical Reports, Chapter 3.600.8(a)
(September 1994).
12

Under 5 U.S.C. § 8107(c)(13)(B), a complete or 100 percent, loss of hearing in both ears entitles an employee
to 200 weeks of compensation. Since the medical evidence, as explained, establishes that appellant has 25 percent
loss of hearing in both ears, he was properly awarded 50 weeks of compensation (25 percent of 200 weeks).

4

CONCLUSION
The Board finds that appellant has not established that he sustained greater than a 25
percent binaural hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 17, 2012 is affirmed.
Issued: March 25, 2013
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KIRTLAND AIR FORCE BASE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 15-249
Issued: March 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 12, 2014 appellant filed a timely appeal from the May 22, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish the April 26, 2011
work injury occurred as alleged.
FACTUAL HISTORY
On March 26, 2014 appellant, a 47-year-old firefighter (hazardous materials technician),
or someone acting on his behalf, filed a traumatic injury claim alleging that he injured his right
thumb in the performance of duty on April 26, 2011: “Individual loading supply hose onto the
P-19 and P-23 during live fire training for Farmington Fire Department. Individual
1

5 U.S.C. § 8101 et seq.

hyperextended right thumb.” The incident took place at the training fire pit area south of
building 638 at 2:00 p.m.
A supervisor completed a notification of injury form on April 27, 2011 indicating that
appellant hyperextended his right thumb while loading a supply hose the previous day.
Dr. Matthew W. Patton, a Board-certified hand surgeon, saw appellant for a right thumb
problem on April 20, 2011. Appellant related that he suffered some pain in the basal joint of the
right thumb for the last month and a half or so. “His pain began insidiously without a history of
trauma.” Dr. Patton diagnosed right thumb basal joint arthritis.
Dr. Patton saw appellant again on May 31, 2011. He noted continued pain in the basal
joint of the right thumb. He noted that appellant tried wearing a splint, but it was not effective.
Dr. Patton treated appellant with an injection. He saw appellant about nine months later and
provided another injection. Dr. Patton repeated the procedure on August 2, 2013 and
February 10, 2014.
Appellant notified OWCP on May 6, 2014 that the traumatic injury actually occurred in
2008. He told his supervisor at that time, but no paperwork was completed. After that traumatic
injury, appellant began having pain in his thumb. He received cortisone shots every four to six
weeks. Appellant advised that work activities aggravated his thumb, which he had to ice to
reduce the swelling. An orthopedic doctor told appellant that he had developed arthritis over
time as a result of the traumatic injury. “Claimant [stated] he was informed incorrectly by his
agency what date to put down for his [traumatic injury]. The agency entered 2011 as the [date of
injury].”
Appellant advised OWCP in writing that he reported the injury to his supervisor in
November 2008. He submitted a claim because the condition of his thumb was getting worse.
Appellant noted that he hyperextended his right thumb during search training drills at Fire
Station 2. He described the symptoms he experienced in 2008. Appellant added: “I have not
sustained any other injury to my right thumb since 11/2008.”
In a decision dated May 22, 2014, OWCP denied appellant’s traumatic injury claim. It
found that the evidence was not sufficient to establish that the event occurred as described. The
claim form indicated the date of injury as April 26, 2011, but appellant’s statement indicated that
the actual date of injury was in November 2008. “Due to the discrepancy in the date you
sustained an injury, we are unable to establish fact of injury, factual.” OWCP added that the
medical evidence did not support the element of causal relationship.
Appellant disagrees with OWCP’s decision. He feels that he has submitted all the
documentation requested to prove the extent of his injury. Appellant explains that he has never
been trained in this matter. He feels that all paperwork was sent to the proper people, and if any
forms or paperwork was not received, it was due to management.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.2 An employee seeking benefits under
2

5 U.S.C. § 8102(a).

2

FECA has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place, and in the manner alleged. He or she must also establish
that such event, incident, or exposure caused an injury.3
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on a claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.4
ANALYSIS
It appears that someone filed a traumatic injury claim on appellant’s behalf. Appellant
did not sign the typed claim form, and the description of the injury refers to him in the third
person as “the individual.” Further, he advised it was the employing establishment that entered
the date of injury.
Although the claim form indicated that an injury occurred on April 26, 2011, appellant
later explained that the injury actually occurred in November 2008. He clarified that he injured
his right thumb during search training drills at Fire Station 2, and that he had not sustained
another injury to his right thumb since November 2008. Appellant submitted the claim form
because the condition of his thumb was getting worse.
Appellant has thereby given good reason to question whether the April 26, 2011 injury
occurred as alleged on the claim form. The medical record shows that he sought medical
attention for his right thumb problem prior to April 26, 2011. When he saw Dr. Patton, the
attending hand surgeon, on April 20, 2011, he related that he suffered some pain in the basal
joint of the right thumb for the last month and a half or so. When appellant saw Dr. Patton on
May 31, 2011, he did not mention an injury while loading a supply hose at work. It is reasonable
to expect a patient to inform his doctor how an injury occurred. None of Dr. Patton’s reports
note a work injury occurring on April 26, 2011.
Given the statements from appellant that conflict with the submitted claim form, and
given the lack of any reference in the medical record to an injury occurring at work on April 26,
2011, the Board finds that appellant has not met his burden to establish that the April 26, 2011
work injury occurred as alleged. The Board will therefore affirm OWCP’s May 22, 2014
decision denying the traumatic injury claim that was submitted.
OWCP did not deny appellant’s claim because he did not submit all the documentation
requested to prove the extent of his injury. It denied the traumatic injury claim that was
3

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

4

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).

3

submitted because it appeared from the evidence that the date of injury was not actually
April 26, 2011. The factual evidence did not support the claim alleged.5
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that the April 26, 2011
work injury occurred as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2015
Washington, DC

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

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

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

5

OWCP also found that the medical evidence did not support the element of causal relationship, but appellant
must first establish that he experienced a specific event, incident, or exposure occurring at the time, place, and in the
manner alleged.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1095
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted March 31, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot
locker while in the performance of duty. He stopped work on the date of injury.
In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right
shoulder strain and advised that appellant was unable to work in any capacity at that time.
An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated
degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal
signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal
full-thickness tear of the distal supraspinous tendon.
In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus
rotator cuff tear.
In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered
from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement.
He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying.
Based on these findings, Dr. Mahmood recommended arthroscopic surgery. In a note of even date,
he requested that appellant be excused from work until June 22, 2014.
By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right shoulder conditions were
causally related to the accepted March 31, 2014 employment incident.
OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera
who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff
capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear.
On June 6, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood
who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior
3

Docket No. 19-0587 (issued July 22, 2019).

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diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while
lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related
to the employment incident on March 31, 2014.
OWCP subsequently received an attending physician’s report (Form CA-20) dated
May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31,
2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating
that these conditions had been caused or aggravated by an employment activity of lifting overhead.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28,
2014 decision.
On November 5, 2015 appellant, through counsel, requested reconsideration of the
August 19, 2015 decision and submitted a November 3, 2015 letter from Dr. Mahmood, who noted
that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work
on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted
that appellant related that, prior to this incident, he had full range of motion of the shoulder. He
explained that that, while MRI scan findings demonstrated some degenerative signs consistent
with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the
rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder
prior to the work-related incident. Because appellant could no longer abduct his shoulder since
the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness
rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment
incident.
By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015
decision.
On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a
June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and
the accepted March 31, 2014 employment incident.
By decision dated March 7, 2017, OWCP denied modification of its prior decision.
On September 13, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 11, 2017, OWCP denied modification of its prior decision.
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an
addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that
appellant’s right shoulder injuries were work related.
By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017
decision.

3

On January 17, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had
not met his burden of proof to establish a right shoulder condition causally related to the accepted
Match 31, 2014 employment incident. 4
On December 5, 2019 appellant, through counsel, requested reconsideration and submitted
an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,
who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss
conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear
to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an
aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right
shoulder. He explained that an impingement syndrome occurred when one raised his or her arm
to shoulder height and above, and the space between the acromion and the rotator cuff narrowed.
Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator
cuff causing irritation and pain. He further explained that this compression could cause attenuation
on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a
person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to
repetitive use had even less space in the area and that shoulder elevation would cause a greater
impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan
revealed that appellant had degenerative changes of the acromioclavicu lar joint predisposing him
to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic
footlocker from the ground above the shoulder at the time of the accepted March 31, 2014
employment incident led to significant impingement and caused the full thickness rotator cuff tear
of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with
shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that
awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted
March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.
By decision dated December 18, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition f or which compensation is claimed is causally related to the

4

Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6

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

4

employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employ ee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata,
absent further review by OWCP under section 8128 of FECA. It is, therefore, unnecessary for the
Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16,
2018 decision as the Board considered that evidence in its July 22, 2019 decision.12
In support of his request for reconsideration, appellant submitted an October 28, 2019
medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to
the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation
of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss
explained that an impingement syndrome occurred when one raised his or her arm to shoulder
height and above, and the space between the acromion and the rotator cuff narrowed. He related
that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

5

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and
predispose appellant to tearing of the rotator cuff. He further explained that for a person with
aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had
even less space in the area and that shoulder elevation would cause a greater impingement and a
greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that
appellant had degenerative changes of the acromioclavicular joint predisposing him to an
impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the
ground to above the shoulder led to significant impingement and caused the full thickness rotator
cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk
factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence
that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction led to the diagnosed pathology.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 13
Dr. Weiss is a Board-certified physician who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion
is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted
inference regarding causal relationship between the diagnosed conditions and the accepted
March 31, 2014 employment incident sufficient to require further development of the case record
by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further
development of the record by OWCP. 15
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused, contributed to, or aggravated the diagnosed right shoulder c onditions.16 If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why their opinion differs from that of Dr. Weiss. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020);
John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 820 (1978).
16

C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 11-1182
Issued: November 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 19, 2011 appellant filed a timely appeal from an April 5, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for a massage
chair. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for a
massage chair.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 5, 2007 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim, alleging that he twisted his back on February 2, 2007 while lifting trays. Appellant’s
claim was accepted for lumbar strain and aggravation of lumbar disc degeneration.2
On October 13, 2010 appellant’s treating physician, Dr. Darryl N. Steele, Board-certified
in family practice, recommended that appellant test various massage chairs to determine which
worked best on his neck and back. He stated that a massage chair would help appellant’s chronic
pain. In an October 25, 2010 report, Dr. Steele noted that appellant had tested several massage
chairs and that 30 minutes of massage had resulted in relaxation. He noted that he would try to
get the chair approved as it “could prevent further deterioration or loss of quality of life.”
On January 4, 2011 OWCP requested that Dr. Steele provide further information
regarding the necessity of the massage chair. He was asked to explain the regime that appellant
would follow in the chair, the goals and benefits of the chair, and the effectiveness of a massage
chair, compared to other modes of treatment. Dr. Steele responded on January 10, 2011 that the
chair prescribed for appellant would decrease his instances of muscle spasms and inflammation
to the neck and lumbosacral areas. He stated that the massage chair would be more beneficial
than alternative modes of treatment, while noting that appellant had been using a nonimpact
exercise machine as part of his treatment.
On March 28, 2011 OWCP referred appellant’s claim to the district medical adviser
(DMA) to determine if the purchase of the requested medical equipment was warranted. The
DMA replied on March 31, 2011, stating:
“While massage therapy is not discouraged, the long[-]term effectiveness of such
treatment does not show a significant measurable improvement in patients with
failed back syndrome. Simpler means (hot tub baths, gentle exercises, etc.) are
probably just as effective. At this time the recommended treatment for this
disorder seems to favor a multidisciplinary approach, and even then, there is a
limited outcome. In my opinion, massage therapy is unlikely to improve the
claimant’s condition…. The purchase of the proposed chair will not significantly
alter the claimant’s outcome, give significant relief, or reduce his disability.
Therefore, the purchase should not be authorized.”
In an April 5, 2011 decision, OWCP denied appellant’s request for the massage chair,
finding that the weight of the medical evidence established that the prescribed massage chair is
not warranted as appellant was not likely to be cured, obtain relief, or reduce the period of
disability.

2

Appellant stopped work on February 2, 2007 and was subsequently placed on the periodic rolls in receipt of
wage-loss compensation. He underwent surgery for lumbar spine fusion on August 5 and 12, 2008.

2

LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation. In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time.3 OWCP has administrative discretion in choosing the means to achieve
this goal and the only limitation on its authority is that of reasonableness.4 It is not enough to
show that the evidence could be construed so as to produce a contrary factual conclusion.5
Section 10.310 (a) of the implementing regulations provide that the employee is entitled
to receive all medical services, appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related injury.6 OWCP
procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if
OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation.7
ANALYSIS
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP considers likely to cure, give
relief, reduce the degree or the period of disability, or aid in lessening the amount of monthly
compensation. The Board finds that Dr. Steele did not adequately explain how the purchase of a
massage chair would cure, reduce the period of disability or aid in lessening the amount of
monthly compensation. Dr. Steele generally recommended the massage chair to relieve
appellant’s symptoms of pain, spasm and inflammation. He did not explain how the massage
chair would physiologically reduce appellant’s pain, spasms and inflammation; he merely
offered a conclusory opinion. Dr. Steele noted that appellant relaxed while sitting in a massage
chair for 30 minutes; but provided no medical explanation as to how the massage chair would
give any long-term relief to appellant’s chronic low back condition for any period of time,
beyond the time spent in the chair. Dr. Steele also did not explain why appellant’s condition
required medical treatment that could only be accommodated by the purchase of this specific
piece of equipment or why relief could not be obtained through soaking in a hot tub of water, or
through his previously prescribed exercise therapy. He did not explain how the chair would aid
3

Dale E. Jones, 48 ECAB 648, 649 (1997).

4

Daniel J. Perea, 42 ECAB 214, 221 (1990); D.A., Docket No. 09-936 (issued January 13, 2010).

5

See P.L., Docket No. 09-594 (issued November 10, 2009).

6

20 C.F.R. § 10.310(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(5)
(August 2011).

3

in returning appellant to the workforce. The Board finds that Dr. Steele’s opinion is insufficient
to establish that the requested massage chair was medically necessitated for treatment of the
diagnosed conditions. OWCP did not abuse its discretion in denying appellant’s request to
authorize purchase of a massage chair based on the recommendation of OWCP’s medical
adviser.8
CONCLUSION
The Board finds that OWCP properly denied authorization for purchase of a massage
chair.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2011 decision of the Office of Workers
Compensation Programs is affirmed.
Issued: November 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8

Accord, J.P., Docket No 10-1356 (issued January 10, 2011) (OWCP did not abuse it discretion in denying
authorization of massage therapy); P.L., supra note 5 (additional massage therapy denied).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
TENNESSE VALLEY AUTHORITY,
Chattanooga, TN
__________________________________________

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

Docket No. 18-1780
Issued: June 13, 2019

Case Submitted on the Record

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

JURISDICTION
On September 25, 2018 appellant, through counsel, filed a timely appeal from a July 13,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated July 11, 2017, which became final after 30 days
of issuance and is not subject to further review.2 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued
July 1, 2015).
3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 28, 2014 appellant, then a 43-year-old property maintenance worker, filed a
traumatic injury claim (Form CA-1) alleging that he was stung on his top lip by a hornet while
cutting vegetation on July 29, 2014 while in the performance of duty. He alleged that he had an
allergic reaction to the sting and was hospitalized. Appellant’s supervisor completed the Form
CA-1 and concurred that appellant was stung by an insect while performing job duties. He noted
that appellant received medical treatment that day and returned to work on July 30, 2014.
Appellant’s supervisor reported that appellant then claimed that he developed a groin infection and
back injuries as a result of the sting. He noted that the employing establishment did not support
appellant’s claim for a groin infection or back injuries as these conditions preexisted the
July 29, 2014 employment insect sting.
An August 4, 2014 report from Dr. W. David Bruce, an orthopedic surgeon, diagnosed
cervical nerve root pain and left shoulder joint pain. He reported on August 4, 2014 that
appellant’s lumbar pain and left shoulder pain began a few days before when he was stung in the
lip by a bee. Dr. Bruce noted that appellant was stung by a wasp and threw the loppers he was
using after the sting. Appellant had an allergic reaction and had to go to the emergency room.
Dr. Bruce found that since the sting and emergency treatment appellant had diffuse unrelenting
pain in his shoulder radiating down his arm. He opined, “I have never seen Parsonage Turner
Syndrome [PTS] result from a bite, but I suspect it could. This sounds like [PTS] to me, especially
the amount of pain he is actually in.”
In an August 12, 2014 note, Dr. Bruce reviewed appellant’s treatment and failure to
improve. He found, “I cannot rule out [PTS] as a direct result of his sting. It is rare but it does
happen.” Dr. Bruce also noted that appellant had a pustule in his groin which appeared to be a
staph infection.
In a letter dated September 18, 2014, OWCP requested additional factual and medical
evidence in support of appellant’s consequential injury claim. It allowed 30 days for a response.

4

Docket No. 17-0031 (issued July 11, 2017).

2

In a note dated September 18, 2014, Dr. Bruce again opined that appellant’s condition was
PTS. He noted, “I think it is direct from the stings [appellant] got.” Dr. Bruce gave the differential
diagnosis of PTS or brachial plexus disorder.
By decision dated October 23, 2014, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his accepted
insect sting on July 29, 2014 and any other medical condition.
On November 18, 2014 Dr. Bruce described appellant’s history of insect sting and initial
treatment. He noted that appellant reported numbness and tingling which had been nonstop since
the sting. Dr. Bruce reported that he requested electrodiagnostic testing to assist with the possible
diagnosis of PTS. He noted that there was no standardized test for PTS and that it was a diagnosis
of exclusion. Dr. Bruce reported that appellant made progress with nerve blocks which indicated
that the original diagnosis of PTS developed from the sting was correct. He diagnosed PTS
secondary to insect sting on July 29, 2014. Dr. Bruce again explained that to reach a diagnosis of
PTS he had to rule out other possible diagnoses. He noted, “Prior to the sting on July 29th,
[appellant] did not have a history of numbness and tingling in the upper extremity. The physical
findings on his initial visit on August 4th remained consistent if not worse on each subsequent visit
until he received the nerve blocks…. After receiving the nerve blocks I saw some
improvement….” Dr. Bruce again opined that the insect sting on July 29, 2014 was the origin of
appellant’s condition.
On November 21, 2014 appellant, through counsel, requested an oral hearing from an
OWCP hearing representative. He submitted his emergency room records from July 29, 2014
which indicated that he sustained multiple stings to his face with swelling of his lip and throat.
In a note dated December 3, 2014, Dr. Bruce opined that appellant developed PTS and that
the nerve blocks were working well for him. He found that there was no doubt that PTS was the
correct diagnosis.
In a November 1, 2014 note, Dr. Bruce diagnosed PTS or brachial plexitis from the insect
sting. He opined that appellant’s testing was required to rule out other causes of his conditions.
In a note dated January 7, 2015, Dr. Bruce again diagnosed PTS from the work-related stings. He
opined that appellant’s condition fit the syndrome and the “way it happened.”
On March 9, 2015 appellant returned to regular duty. In a note dated June 4, 2015,
Dr. Bruce diagnosed PTS caused by a sting that occurred at work. He found that appellant had
reached maximum medical improvement and provided an impairment rating.
On June 19, 2015 appellant testified at the oral hearing before an OWCP hearing
representative. He indicated that while at work on July 29, 2014 he was stung on the upper lip by
what he believed was a hornet. Appellant’s lip began to swell, his throat began to close, and he
could not breathe. Appellant received emergency attention for his reaction to the sting. He
testified that his left shoulder began hurting the afternoon of July 29, 2014 following the stings.
Appellant reported for work the next day, but did not work an entire shift because his shoulder was
hurting. He sought medical treatment for his left shoulder on August 4, 2014 with Dr. Bruce.

3

OWCP’s hearing representative allowed appellant an additional 30 days to submit medical
evidence.
By decision dated August 11, 2015, OWCP’s hearing representative reviewed the medical
evidence and found that Dr. Bruce had not adequately explained how an insect bite would cause
PTS. He further noted that Dr. Bruce had not indicated what test results confirmed the diagnosis
of PTS. OWCP’s hearing representative concluded that Dr. Bruce did not provide rationalized
medical opinion evidence and that his opinions were of reduced probative value. He found that
appellant had not met his burden of proof to establish a consequential injury.
On January 28, 2016 appellant, through counsel, requested reconsideration from the
August 11, 2015 decision of OWCP’s hearing representative. In support of this request, he
submitted a medical narrative from Dr. Bruce dated January 12, 2016. Dr. Bruce diagnosed PTS
and opined that appellant’s insect bites resulted in this diagnosis. He concluded that as appellant’s
insect bites were work related and caused the PTS. Dr. Bruce noted “The literature supports this
in that other creatures and bites have resulted in [PTS] and this has been confirmed by neurologist.”
By decision dated August 5, 2016, OWCP denied modification. It found that appellant had
not submitted medical evidence establishing a causal relationship between his accepted
employment-related insect stings and his diagnosed condition of PTS.
On October 10, 2016 appellant, through counsel, appealed the August 5, 2016 decision to
the Board. In its July 11, 2017 decision, the Board found that the medical evidence of record was
insufficient to establish PTS or any other medical condition as a result of his accepted July 29,
2014 insect sting.
On July 11, 2018 appellant, through counsel, requested reconsideration from OWCP. In
support of this request, he provided a July 9, 2018 report from Dr. Bruce, who noted appellant’s
history of an insect sting. Counsel reported that appellant required hospitalization due to throat
swelling and was treated with epinephrine and steroids. Appellant then developed unrelenting
shoulder pain. Dr. Bruce repeated his diagnosed of PTS or a form of brachial plexus neuritis. He
noted that this condition was rare. Dr. Bruce reported, “I have no knowledge of whether insects
have ever been reported [as causing PTS] but it is poorly understood.” He found that appellant’s
electromyogram (EMG) and physical examination comported with PTS. Dr. Bruce concluded, “I
do believe with a reasonable degree of medical certainty that it is related to this sting that he
suffered.”
By decision dated July 13, 2018, OWCP denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a). It found that Dr. Bruce’s July 8, 2018 report was
cumulative and substantially similar to evidence previously considered.
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

4

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.6 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.7 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.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, and he did not advance a new and relevant legal
argument not previously considered. Accordingly, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).9
Appellant also did not submit relevant and pertinent new evidence not previously
consideration by OWCP. Along with his reconsideration request, he provided a July 9, 2018 report
from Dr. Bruce. This report merely reiterated his prior diagnosis and opinion on causal
relationship without further rationale. As Dr. Bruce’s July 9, 2018 report repeats evidence already
in the case record, it is duplicative and cumulative and fails to constitute relevant and pertinent
new evidence.10 Therefore, this evidence is insufficient to require OWCP to reopen appellant’s
claim for consideration of the merits.11 Thus, appellant is not entitled to further review of the
merits of his claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
As appellant’s request for reconsideration failed to meet any of the criteria under 20 C.F.R.
§ 10.606(b)(3), the Board accordingly finds that OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 20 C.F.R. § 10.608.

5
20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also H.H., supra note 5; M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see also H.H., supra note 5; E.R., Docket No. 09-1655 (issued March 18, 2010).

9

H.H., supra note 5.

10

T.T., Docket No. 18-1682 (issued February 22, 2019); P.H., Docket No. 18-1020 (issued November 1, 2018);
L.H., 59 ECAB 253 (2007).
11

T.T., id.; L.H., id.

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 13, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Cloud, MN, Employer
__________________________________________

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

Docket No. 14-1464
Issued: November 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2014 appellant filed a timely appeal from the May 14, 2014 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 met his burden of proof to establish that he has more than
a 40 percent permanent impairment of his left arm, for which he received schedule awards.
FACTUAL HISTORY
OWCP accepted that on March 24, 1988 appellant, then a 31-year-old licensed practical
nurse, sustained dislocation, adhesive capsulitis and localized primary osteoarthritis of his left
1

5 U.S.C. §§ 8101-8193.

shoulder due to lifting a patient up into bed with the aid of a coworker.2 He underwent left
shoulder arthroscopy on July 20, 1988, anterior left shoulder stabilization; a cruciate capsular
repair on May 1, 1990; and a left shoulder open revision surgery with decompression on
November 8, 1999. The procedures were authorized by OWCP.
In a decision dated September 12, 2002, OWCP granted appellant a schedule award for a
15 percent permanent impairment of his left arm. The award ran for 46.8 weeks from
November 1, 2001 to September 24, 2002. The award was based on a July 29, 2002 impairment
rating under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001) by Dr. David H. Garelick, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser. Dr. Garelick based his
impairment rating on physical examination findings obtained in May 2002 by Dr. Daniel D. Bus,
an attending Board-certified orthopedic surgeon.
On November 12, 2008 Dr. Michael Q. Freehill, an attending Board-certified orthopedic
surgeon, performed an authorized total left shoulder replacement surgery, which included left
pectoralis major tendon transfer for subscapularis deficiency with graft jacket and biceps
tenodesis.
In a November 19, 2009 report, Dr. Freehill stated that appellant reported feeling
significantly better after his November 12, 2008 left shoulder surgery despite experiencing some
pain and locking sensation in his left shoulder. The physician provided findings for range of
motion testing of appellant’s left shoulder and noted that his pectoralis major tendon appeared to
be intact and firing. There was no crepitus in appellant’s left shoulder and strength was 5/5.
Dr. Freehill observed that appellant’s surgical incision appeared dry and clean with no drainage
and that he was intact with regard to sensory and motor function.
On March 3, 2010 Dr. Freehill determined that, under Table 15-5 on page 405 of the
sixth edition of the A.M.A., Guides (6th ed. 2009), appellant had a class 3 diagnosis-based
impairment of his left arm due to his total left shoulder arthroplasty. Appellant had a grade
modifier 1 for functional history and modifier 1 for physical examination and application of the
net adjustment formula caused movement two places to the left from the default value on
Table 15-5. Dr. Freehill rated a 26 percent impairment of appellant’s left arm, noting that
maximum medical improvement (MMI) was November 19, 2009.
On April 26, 2010 Dr. Garelick, serving as an OWCP medical adviser, discussed
Dr. Freehill’s findings regarding appellant’s left shoulder condition after his November 12, 2008
total left shoulder replacement surgery. He noted that Dr. Freehill stated that appellant had done
relatively well since the surgery despite complaining of pain with activity. Physical examination
by Dr. Freehill revealed healed surgical incisions without infection, normal 5/5 strength and
active range of motion slightly diminished with 150 degrees of forward elevation and 100
degrees of abduction. The remainder of the examination was unremarkable and x-rays showed
that the arthroplasty was in a good position without evidence of loosening. Dr. Garelick stated
2

OWCP had previously accepted that on September 4, 1987 appellant sustained a left shoulder contusion and
permanent aggravation of preexisting left shoulder instability with post-traumatic early glenohumeral arthritis due to
being punched in his left shoulder by a patient.

2

that, under Table 15-5 on page 405 of the sixth edition of the A.M.A., Guides, appellant had a
class 3 diagnosis-based left arm impairment with a default value of 40 percent due to a
complicated total shoulder arthroplasty necessitating a pectoralis major transfer. He noted that
the award included consideration of range of motion, weakness and pain and that there was no
change from the default value of 40 percent upon application of the net adjustment formula. The
date of MMI occurred on November 19, 2009 as found by Dr. Freehill.
In a decision dated May 10, 2010, OWCP granted appellant a schedule award for an
additional 25 percent permanent impairment of his left arm, compensating him for a total
impairment of 40 percent. The award ran for 78 weeks from November 19, 2009 to May 18,
2011 and was based on the examination findings of Dr. Freehill and the April 26, 2010 report of
Dr. Garelick.
On March 13, 2013 Dr. Freehill performed authorized revision surgery to reverse total
left shoulder arthroplasty. In June 2013, appellant returned to limited-duty work for the
employing establishment.
On March 27, 2014 appellant filed a claim for an additional schedule award.
In a March 7, 2014 report, Dr. Freehill detailed the findings of his physical examination
on that date, noting that appellant reported that he currently had minimal pain and good function
in his left shoulder. He stated that appellant had well-healed surgical incisions and that there was
no shoulder atrophy. Dr. Freehill reported range of motion findings for appellant’s left shoulder,
including active flexion to 150 degrees and active abduction to 145 degrees. Strength of
appellant’s left shoulder was 4+ and he was able to fire his deltoid muscle without difficulty.
In a form report dated March 7, 2014, Dr. Freehill determined that, under Table 15-5 on
page 405 of the sixth edition of the A.M.A., Guides, appellant had a class 3 diagnosis-based
impairment of his left arm due to his reverse total left shoulder arthroplasty. He stated that
appellant had a grade modifier 1 for functional history and modifier 1 for physical examination3
and determined that appellant had a 43 percent permanent impairment of his left arm based on
the diagnosis-based impairment. Dr. Freehill found that appellant had one percent permanent
impairment of his left arm due to loss of left shoulder motion. He then added the 43 percent
rating for diagnosis-based impairment and the 1 percent rating for range of motion impairment to
conclude that appellant had total left arm impairment of 44 percent.
On April 28, 2014 Dr. Garelick, the medical adviser, reviewed the reports from
Dr. Freehill, who indicated that appellant had done relatively well following his left shoulder
surgery and experienced minimal pain with good function. Examination of appellant’s left
shoulder demonstrated that all surgical incisions had healed and that range of left shoulder
motion was near normal. Strength in his left shoulder was 4+ without tenderness signs and
x-rays revealed that the glenoid and humeral components were in good position without evidence
of loosening or scapular notching. Dr. Garelick noted that Dr. Freehill had recommended a

3

Dr. Freehill did not provide a grade modifier for clinical studies.

3

44 percent impairment rating of appellant’s left arm based on diagnosis-based impairment and
range of motion impairment and stated:
“However, this is not allowed based on the rules set forth in the [sixth edition of
the A.M.A., Guides]. Thus, I would suggest [appellant] award be disregarded.
By all accounts, [appellant] has done well and there is no objective basis for any
change to his award. However, given the revision surgery, the date of MMI needs
to be updated and occurred on March 7, 2014, approximately 1 year
postoperatively. TOTAL left upper extremity [permanent partial impairment] =
40 percent Date of MMI = March 7, 2014.”
By decision dated May 14, 2014, OWCP found that appellant did not establish that he has
more than a 40 percent permanent impairment of his left arm, for which he received schedule
awards. It found that the medical evidence did not establish greater permanent impairment of his
left arm. OWCP explained that Dr. Garelick determined that Dr. Freehill impermissibly added
impairment ratings for diagnosis-based impairment with range of motion impairment.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides is used for evaluating permanent
impairment.7
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.8
After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
8

A.M.A., Guides 401-05.

4

grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).9 Table 15-5 also provides that, if motion loss is present for a
claimant who has undergone a shoulder arthroplasty, impairment may alternatively be assessed
using Section 15.7 (range of motion impairment). Such a range of motion impairment stands
alone and is not combined with a diagnosis impairment.10
ANALYSIS
OWCP accepted that on March 24, 1988 appellant sustained dislocation, adhesive
capsulitis and localized primary osteoarthritis of his left shoulder and it authorized multiple
surgeries of his left shoulder. On November 12, 2008 Dr. Freehill, an attending Board-certified
orthopedic surgeon, performed total left shoulder replacement surgery, which included left
pectoralis major tendon transfer for subscapularis deficiency with graft jacket and biceps
tenodesis. On March 13, 2013 he performed OWCP-authorized revision surgery to reverse total
left shoulder arthroplasty. OWCP granted appellant schedule awards for a 40 percent permanent
impairment of his left arm. The determination that appellant had this degree of left arm
impairment was based on the opinion of Dr. Garelick, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser. Dr. Garelick calculated his impairment rating based on
the findings of Dr. Freehill.
The Board finds that appellant has not submitted sufficient medical evidence to establish
that he has more than a 40 percent permanent impairment of his left arm.
The Board notes that Dr. Garelick properly calculated that appellant had 40 percent
permanent impairment of his left arm based on findings provided by Dr. Freehill. On April 26,
2010 Dr. Garelick stated that, under Table 15-5 on page 405 of the sixth edition of the A.M.A.,
Guides, appellant had class 3 diagnosis-based left arm impairment with a default value of
40 percent due to his complicated total shoulder arthroplasty necessitating a pectoralis major
transfer.11 He considered appellant’s range of motion, weakness and pain and found that the
grade modifiers did not cause any change from the default value of 40 percent impairment upon
application of the net adjustment formula.12 Therefore, Dr. Garelick found that appellant had 40
percent permanent impairment of his left arm.
In a March 7, 2014 report, Dr. Freehill provided an opinion that appellant had 44 percent
permanent impairment of his left arm. However, his opinion is of limited probative value in that

9

Id. at 405-12.

10

Id. at 405, 475-78.

11

Id. at 405.

12

See id at 405-11.

5

he failed to provide adequate explanation of how this rating of permanent impairment was
derived in accordance with the standards of the sixth edition of the A.M.A., Guides.13
Dr. Freehill indicated that appellant had 43 percent left arm impairment due to his class 3
left shoulder arthroplasty. Under Table 15-5 of the sixth edition of the A.M.A., Guides, the
highest default value for a grade 3 shoulder arthroplasty is 40 percent. Dr. Freehill stated that
appellant had a grade modifier 1 for functional history and modifier 1 for physical examination.14
However, under Table 15-5, application of the net adjustment formula to these grade modifiers
would cause movement two places to the left of the default value of 40 percent and would render
a diagnosis-based impairment value of 34 percent, not an impairment rating of 43 percent.
Dr. Freehill also added 1 percent impairment based on loss of range of motion findings, to his
diagnosis-based rating of 43 percent. While Table 15-5 allows for consideration of range of
shoulder motion in arthroscopy cases as an alternative rating method, it explicitly provides that
the range of motion rating stands alone and may not be combined with a rating derived under the
diagnosis-based method.15
On appeal, appellant indicated that the pain in his left shoulder had worsened and that he
had less range of motion; however, the medical evidence of record does not establish more than a
40 percent permanent impairment of his left arm, for which he received schedule awards.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than 40 percent permanent impairment of his left arm, for which he received schedule
awards.

13

See James Kennedy, Jr., 40 ECAB 620 (1989) (finding that an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative
value in determining the extent of a claimant’s permanent impairment).
14

Dr. Freehill did not provide a grade modifier for clinical studies.

15

A.M.A., Guides 405, 475-78.

6

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL DISASTER MEDICAL
SERVICES, Bethesda, MD, Employer
__________________________________________

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

Docket No. 14-203
Issued: April 24, 2014

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant, through his attorney, filed a timely appeal of a
September 17, 2013 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his
necrotizing mynonecrosis was causally related to his employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. On July 31, 2011 appellant
then a 64-year-old health technician/paramedic filed an occupational disease claim alleging that
he had developed necrotizing fasciitis, clostriudium septicum due to factors of his federal
employment. He stated that he returned from a two-week deployment in Haiti on January 30,
2010 and was diagnosed with strep throat. Appellant stated that periodically after that he
developed multiple episodes of uncontrolled fevers and on July 2, 2011 received a diagnosis of
necrotizing fasciitis.
In a report dated September 8, 2011, Dr. Robert E. Hruby, a Board-certified surgeon,
stated that he first examined appellant on July 2, 2011 with necrotizing fasciitis and myonecrosis
secondary to clostridium perfringens infection. He stated that appellant developed multisystem
organ failure and required treatment for respiratory failure, renal failure and overwhelming
sepsis. Dr. Hruby opined, “From a clinical standpoint, the infectious etiology of his disease may
be related to his deployment to Haiti although deployment occurred months before. The medical
literature suggests that these types of unusual infections mainly remain dormant in the
gastrointestinal tract for extended periods of time.” Dr. Hruby examined appellant on July 3,
2011 and diagnosed necrotizing fasciitis with no clear source, possibly spontaneous, with
multisystem organ failure. On July 22, 2011 he diagnosed clostridium perfringens necrotizing
fasciitis involving the upper back, right flank and right anterior abdominal wall.
By decision dated November 1, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence had not established that his diagnosed condition was due to his
employment. The Board reviewed appellant’s appeal in a decision dated November 5, 2012 and
reissued on January 18, 20132 and found that Dr. Hruby did not explain how or why he believed
that appellant developed necrotizing fasciitis and myonecrosis due to his deployment to Haiti.
The Board found that appellant had not submitted sufficient medical opinion evidence to
establish his occupational disease claim. The facts and circumstances of the case as set forth in
the Board’s prior decision are adopted herein by reference.
Counsel requested reconsideration on August 13, 2013. In a report dated December 1,
2011, Dr. Hruby opined that clostridium perfringens was the etiology of appellant’s necrotizing
myonecrosis. He stated that clostridium perfringens were endemic in Haiti. Dr. Hruby
concluded, “The patient, after his deployment, developed an acute diarrheal illness followed by
fulminant sepsis and necrotizing myonecrosis. As you are also aware, these infections may lay
dormant in carriers for extended period of time. Based on these criteria, it is probable that this
unusual life threatening infection from which [appellant] is recovering may be related to his
deployment to Haiti.”
By decision dated September 17, 2013, OWCP denied modification of its prior decisions.
It reviewed Dr. Hruby’s December 1, 2011 report and continued to be speculative as to the
relationship between appellant’s condition and his employment.
2

Docket No. 12-1169 (issued November 5, 2012). Due to a failed delivery of its November 5, 2012 decision to
appellant, the Board issued an order reissuing this decision on January 18, 2013.

2

LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”3 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.4
ANALYSIS
The Board previously found that appellant had established that he was a federal employee
and had implicated a factor of employment, i.e., deployment to Haiti in January 2011, but had
failed to establish that the diagnosis of necrotizing fasciitis in July 2011 was causally related to
the employment factor.
The Board finds that appellant has failed to submit the necessary rationalized medical
opinion evidence to establish that his diagnosed condition was caused or aggravated by his travel
to Haiti. Appellant submitted an additional report from Dr. Hruby dated December 1, 2011.
Dr. Hruby again opined that clostridium perfringens were the etiology of appellant’s necrotizing
myonecrosis and were endemic in Haiti. He noted that, subsequent to his deployment to Haiti,
appellant developed an acute diarrheal illness followed by fulminant sepsis and necrotizing
myonecrosis. Dr. Hruby stated that these infections may lay dormant in carriers for extended
period of time. He concluded, that it was probable that appellant’s infection “may be related” to
his deployment to Haiti.
This report is of limited probative value in establishing that appellant’s diagnosed
occupational disease is related to his deployment to Haiti. Dr. Hruby did not explain how or why
he believed that appellant developed necrotizing fasciitis and myonecrosis due to his deployment
to Haiti. He merely indicated that there was a possible connection. Without medical opinion
evidence addressing mechanics by which appellant’s deployment to Haiti would have resulted in
the diagnosed condition and offering a clear opinion that this deployment was the cause of
appellant’s disease process, this report is not sufficient to meet appellant’s burden of proof.
Dr. Hruby’s opinion is also speculative in nature as he used the phrases “probable” and “may be
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

related” in describing the causal relationship between appellant’s diagnosed condition and his
employment exposure.5
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between his deployment to Haiti in January 2011 and his
disease process in July 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to submit the necessary medical opinion
evidence to establish his occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT September 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

See Jennifer Beville, 33 ECAB 1970, 1973 (1982); Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (finding that an
opinion which is speculative in nature is of limited probative value on the issue of causal relationship).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Antonio, TX, Employer
__________________________________________

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

Docket No. 07-1217
Issued: November 2, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 9, 2007 which denied his claim that he
sustained an injury in the performance of duty. 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 has established that he sustained an injury on October 4,
2004 while in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 16, 2006, the
Board set aside the Office’s January 13, 2006 decision denying appellant’s claim and remanded
the case for further development.1 The Board found that the Office did not properly develop the
1

Docket No. 06-1168 (issued October 16, 2006).

factual evidence with regard to why appellant was on the premises of the employing
establishment two hours after his tour of duty ended and whether he was engaged in any
preparatory or incidental activity related to his employment. The facts and the history relevant to
the present issue are set forth.
On October 6, 2004 appellant, then a 35-year-old immigration enforcement agent, filed a
claim alleging that on October 4, 2004 he was injured in a motor vehicle accident that occurred
on the employing establishment’s premises while he was driving out of the facility at about
6:00 p.m. Medical records indicated that appellant lost control of his vehicle and struck a pole
while leaving work and sustained a dislocated right hip and a fractured posterior acetabulum.
The employing establishment indicated that appellant was off duty at the time of the accident as
his normal working hours were from 8:00 a.m. to 4:00 p.m.
Following the Board’s October 16, 2006 decision, the Office requested additional factual
information from the employing establishment and appellant regarding why he was on the
employing establishment premises over two hours after his tour of duty ended.
In a November 22, 2006 statement, appellant advised that on October 4, 2004 he had
worked Administrative Uncontrollable Overtime (AUO) from 4:00 p.m. to 6:00 p.m. performing
his normal marshal duties. He also supplied a list of individuals whom he stated could verify his
overtime that day. No statements from such individuals were provided by appellant.
In a January 3, 2007 statement, Marc J. Moore, Field Office Director, advised that on
October 4, 2004 appellant had worked AUO from 4:00 p.m. to 4:30 p.m. in addition to his
normal tour from 8:00 a.m. to 4:00 p.m. At the time of the 6:00 p.m. accident, he stated that
appellant was not engaged in duties or work incident to his employment and was not involved in
official “off-premises” duties. Mr. Moore further stated that, at the time of the accident,
appellant was in his private vehicle on his commute home. He advised that appellant’s work
duties did not require that he engage in any work activities while in a personal vehicle.
Mr. Moore indicated that employing establishment records confirmed that appellant worked from
8:00 a.m. to 4:30 p.m. on October 4, 2004.
In a January 3, 2007 statement, Bertha Cardinas, Mission Support Specialist, indicated
that appellant last performed official duty on October 4, 2004 at 4:30 p.m. She indicated that the
6:00 p.m. accident took place approximately a tenth of a mile from the place where appellant last
performed official duty. Ms. Cardinas further indicated that appellant was in his personal vehicle
commuting home at the time of the accident.
By decision dated January 9, 2007, the Office denied appellant’s claim, finding that the
evidence was insufficient to establish that he sustained an injury while in the performance of his
federal duties on October 4, 2004.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for the payment of compensation
for disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase sustained while in the performance of duty is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment. In the course of employment relates to the
elements of time, place or circumstance. To arise in the course of employment, an injury must
occur at a time when the employee may be reasonably said to be engaged in the master’s
business, at a place where he may reasonably be expected to be in connection with the
employment and while he was reasonably fulfilling the duties of his employment or engaged in
doing something incidental thereto.4 The employee must also establish an injury arising out of
employment. To arise out of employment, the injury must have a causal connection to the
employment, either by precipitation, aggravation or acceleration.5
Under the Act, an injury sustained by an employee having fixed hours and place of work
while going to or coming from work is generally not compensable because it does not occur in
the performance of duty. However, many exceptions to the rule have been declared by the courts
and workers’ compensation agencies. One such exception almost universally recognized is the
premises rule, an employee going to or coming from work before or after working hours or at
lunch, while on the premises of the employer, is compensable.6 This includes a reasonable
interval before and after official working hours while the employee is on the premises engaging
in preparatory or incidental acts. What constitutes a reasonable interval depends not only on the
length of time involved, but also on the circumstances occasioning the interval and nature of the
employment activity. The mere fact that an injury occurs on an industrial premises following a
reasonable interval after working hours is not sufficient to bring the injury within the
performance of duty. The concomitant requirement of an injury arising out of the employment
must also be shown.7 That is, some substantial employer benefit or an employer requirement
must be shown in order to consider the activity involved to be arising out of employment.8 It is
incumbent upon appellant to establish that the injuries arose out of his employment; that is, the
accident must be shown to have resulted from some risk incidental to the employment.9

2

5 U.S.C. §§ 8101-8193.

3

Id.

4

Mona M. Tates, 55 ECAB 128 (2003); Timothy K. Burns, 44 ECAB 125 (1992).

5

John B. Shutack, 54 ECAB 336 (2003); see also Bettina M. Graf, 47 ECAB 687 (1996).

6

See Emma Varnerin, M.D., 14 ECAB 253 (1963).

7

Narbik A. Karamian, 40 ECAB 617 (1989).

8

Timothy K. Burns, supra note 4.

9

Id.

3

A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.10
ANALYSIS
While it has been established that appellant’s accident took place on the employing
establishment premises while he was going home, it has not been established that he was
engaged in activities which may be described as incidental to his employment, i.e., that he was
engaged in activities which fulfilled his employment duties or responsibilities or were incidental
thereto. It is incumbent upon appellant to establish that it arose out of his employment; that is,
the accident must be shown to have resulted from some risk incidental to the employment. In
other words, some contributing or causal employment factor must be established.11
The evidence shows that appellant worked his normal hours from 8:00 a.m. to 4:00 p.m.
and then worked a half-hour AUO until 4:30 p.m. He injured himself at 6:00 p.m., an hour and a
half later, while driving off the employing establishment premises in his personal vehicle. There
is no accounting of appellant’s time from 4:30 p.m. to 6:00 p.m. and the employing
establishment denied that he was engaged in any duties or work incidental to his employment
after 4:30 p.m. or that his work duties required the use of his personal vehicle. Although,
appellant asserted that he worked until 6:00 p.m., the employing establishment disputed this and
advised that its records supported that appellant only worked until 4:30 p.m. The Board finds
that the evidence establishes that appellant’s workday ended at 4:30 p.m.
Although the incident occurred on the employing establishment premises, it did not occur
during appellant’s regular working hours (including authorized overtime) or during a lunch or
recreation period as a regular incident of employment. Some substantial employer benefit or an
employer requirement must be shown in order to consider the activity involved arose out of the
employment.12 There is no evidence of record that appellant was engaged in the duties of the
employing establishment, which ended an hour and a half earlier, or in activities that can be
characterized as reasonably incidental to his employment within a reasonable interval after he
stopped work. Thus, when appellant injured himself while driving from the employing
establishment an hour and a half after his normal working hours ended, he could no longer be
considered in the course of employment. He was present on the employer’s premises, not in
furtherance of the employer’s business or any activity incidental thereto. Appellant’s presence
on the employing establishment premises an hour and a half after his tour of duty ended coupled
with the length of time after his tour of duty ended placed the injury outside the scope of
employment. Thus, the Board finds that his injury on October 4, 2004 was not sustained while in
the performance of duty.

10

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

11

See Bernard Redmond, 45 ECAB 298 (1994).

12

See id.; Nona J. Noel, 36 ECAB 329 (1984).

4

CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury in the
performance of duty, as he had been off work for approximately an hour and a half, was on his
way home and was not performing any function for the employing establishment.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5