United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0325
Issued: November 5, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 26, 2018 appellant filed a timely appeal from an October 17, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 19-0325.
On October 15, 2014 appellant, then a 42-year-old tax examiner, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome as a result
of over 23 years of repetitive employment duties including typing. She submitted medical reports
beginning September 17, 2014 and continuing in support of her claim. Appellant underwent
bilateral carpal tunnel release on November 16, 2015.
By decision dated June 29, 2017, it accepted the claim for bilateral carpal tunnel syndrome.

1

The Board notes that following the October 17, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

On August 22, 2017 appellant filed claims for compensation (Form CA-7) for leave
without pay beginning August 25, 2014 through July 9, 2017. In support of her claims she
submitted medical reports and forms dated June 9, 2014 through July 13, 2017 as well as a
September 18, 2017 report from Dr. Joel Cone, a treating chiropractor.
By decision dated November 21, 2017, OWCP denied appellant’s claims for wage-loss
compensation for the period August 25, 2014 through July 9, 2017, finding that the medical
evidence of record failed to establish that she was disabled as a result of her accepted bilateral
carpal tunnel syndrome. It noted that the only evidence received was the September 18, 2017
report from her chiropractor.
On May 7, 2018 appellant requested reconsideration of the November 21, 2017 OWCP
decision. In support of her claim, she submitted medical reports and notes dated December 14,
2017 through September 12, 2018.
By decision dated October 17, 2018, OWCP affirmed the November 21, 2017 decision,
finding that the medical evidence of record was insufficient to establish disability for the period
August 25, 2014 through July 9, 2017. It noted its review of medical reports dated December 14,
2017 through June 1, 2018.
Having reviewed the case record submitted by OWCP, the Board finds that this case is not
in posture for decision.
In its October 17, 2018 decision, OWCP denied appellant’s claim for compensation based
on medical reports dated December 14, 2017 through June 1, 2018. The Board finds that OWCP
failed to review all of the relevant medical evidence and made no reference to the older medical
reports of record which appellant had submitted from the initial filling of her claim. The record
reflects that appellant filed her occupational disease claim on October 15, 2014 and stopped work
as a result of her bilateral wrist condition. However, OWCP did not accept the claim for bilateral
carpal tunnel syndrome until June 29, 2017, almost three years later. The medical evidence of
record submitted at the time of the initial filing of the claim dating back to September 17, 2014
and continuing is relevant and contemporaneous with the claimed period of disability for the period
August 25, 2014 through July 9, 2017.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior
to the time of issuance of its final decision be reviewed and addressed by OWCP.2 Because OWCP
failed to consider all of the relevant medical reports of record, the Board cannot review such
evidence for the first time on appeal.3

2

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also Linda
Johnson, 45 ECAB 439 (1994) (applying Couch where OWCP did not consider a medical report received on the date
of its decision).
3

20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

2

For these reasons, the case will be remanded to OWCP for proper consideration of all of
the evidence of record.4 Following such further development as it deems necessary, OWCP shall
issue an appropriate merit decision.5 Accordingly,
IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for proceedings consistent
with this order of the Board.
Issued: November 5, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4

M.J., Docket No. 18-0605 (issued April 12, 2019).

5

B.N., Docket No. 17-0787 (issued July 6, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Anaheim, CA, Employer
__________________________________________

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

Docket No. 19-0268
Issued: July 9, 2019

Case Submitted on the Record

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

JURISDICTION
On November 19, 2018 appellant filed a timely appeal from an October 10, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish cervical and lumbar
conditions causally related to the accepted July 18, 2018 employment incident.
FACTUAL HISTORY
On August 14, 2018 appellant, then a 65-year-old postal clerk, filed a traumatic injury
claim (Form CA-1) alleging that on July 18, 2018 he sustained neck and low back injury when he
was backing his vehicle up from a parked position and he struck another vehicle while in the
1

5 U.S.C. § 8101 et seq.

performance of duty. On the reverse side of the form the employing establishment controverted
the claim. R.M., a supervisor, indicated that appellant “never mentioned [that] he sustained any
injury as a result of the accident.” He also asserted that the injury was caused by appellant’s willful
misconduct and added that appellant had backed the vehicle into a busy street. Appellant did not
stop work.
In a development letter dated August 31, 2018, OWCP advised appellant that additional
medical evidence was needed to establish his claim. It informed appellant that he should submit a
medical report, which contained a diagnosis and a rationalized opinion explaining how the
diagnosed condition was caused by the alleged employment incident. OWCP afforded appellant
30 days to submit the necessary evidence.
OWCP received a January 31, 2018 report from Dr. Chin Se Kim, an osteopathic physician
specializing in sports and internal medicine, who indicated that appellant had been under his care,
since February 8, 2005, for temporomandibular joint pain syndrome, thoracalgia, and neck pain
with arm paresthesia associated with cervical radiculopathy. Dr. Kim reported that appellant was
evaluated for exacerbation of severe thoracic pain and low back pain due to his job duties and
noted that appellant indicated that his low back pain worsened when standing in one place for
prolonged periods of time. He recommended restrictions including no standing longer than five
hours at a time.
In a September 6, 2018 attending physician’s report (Form CA-20), Dr. Kim checked the
box marked “yes” in response to whether appellant had a preexisting condition, noting “lumbar
radiculopathy, cervical radiculopathy, cervicalgia, [and] lumbago.” He diagnosed lumbar
radiculopathy, cervical radiculopathy, and exacerbation of lumbago, cervicalgia. Dr. Kim checked
the box marked “yes” indicating that he believed the diagnosed conditions were caused or
aggravated by an employment activity. He further indicated, “MVA [motor vehicle accident]
aggravated preexisting condition” and that appellant was totally disabled from work for the period
July 19 to 28, 2018, and recommended light-duty work commencing July 29, 2018.
By decision dated October 10, 2018, OWCP found that appellant had established that the
July 18, 2018 employment incident occurred as alleged, but denied the claim, finding that the
evidence of record was insufficient to establish that his medical conditions were causally related
to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally

2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

2

related to the employment injury.3 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.4
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6
To establish causal relationship between the condition, as well as any attendant disability
claimed, and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.7 Causal relationship is a medical issue and
the medical evidence required to establish causal relationship is rationalized medical evidence.8
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.9 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish cervical and
lumbar conditions causally related to the accepted July 18, 2018 employment incident.
OWCP received a January 31, 2018 report from Dr. Kim, who indicated that he had treated
appellant, since February 8, 2005, for multiple conditions to include thoracalgia, neck pain,

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

D.B., Docket No. 18-1359 (issued May 14, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

6

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

7
J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

3

cervical radiculopathy, severe thoracic pain, and low back pain. This report predates the July 18,
2018 employment incident, while it is relevant to support that appellant had preexisting conditions,
the report does not offer any opinion as to whether the July 18, 2018 employment incident caused
any cervical or lumbar conditions. The Board has held that medical evidence which predates the
date of a traumatic injury has no probative value on the issue of causal relationship.11 It is,
therefore, irrelevant to establish a current work-related injury.
In a September 6, 2018 attending physician’s report (Form CA-20), Dr. Kim checked the
box marked “yes” indicating that he believed the diagnosed conditions were caused or aggravated
by an employment activity and noted “MVA aggravated preexisting condition.” The Board has
held that a report that addresses causal relationship with a checkmark, without medical rationale
explaining how the employment incident caused or aggravated the diagnosed condition, is of
diminished probative value and insufficient to establish causal relationship.12 Other than to
indicate that the motor vehicle accident aggravated a preexisting condition, Dr. Kim failed to offer
medical rationale explaining how appellant’s diagnosed lumbar and cervical conditions and
disability status were caused or aggravated by the accepted work incident on July 18, 2018. Thus,
the Board finds that the report is insufficient to establish appellant’s burden of proof.13
Entitlement to FECA benefits may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of a causal relationship.14 The Board finds that the record lacks
rationalized medical evidence establishing causal relationship between the July 18, 2018
employment incident and the diagnosed cervical and lumbar conditions.15
As appellant has not submitted sufficiently rationalized medical evidence to support his
claim that he sustained cervical and lumbar conditions causally related to the accepted July 18,
2018 employment incident, he has not met his burden of proof.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.

11

D.B., supra note 5; V.N., Docket No. 16-1427 (issued December 13, 2016).

12

See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).
13

M.C., Docket No. 18-0361 (issued August 15, 2018).

14

See A.S., Docket No. 17-2010 (issued October 12, 2018); Louis R. Blair, Jr., 54 ECAB 348 (2003).

15

See J.S., Docket No. 17-0507 (issued August 11, 2017).

16

K.L., Docket No. 18-1029 (issued January 9, 2019).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish cervical and
lumbar conditions causally related to the accepted July 18, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 13-2044
Issued: February 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 6, 2013 appellant filed a timely appeal from a March 29, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established entitlement to a schedule award due to her
accepted employment injuries on October 4, 2007.

1

In her appeal letter, appellant did not contest OWCP’s June 4, 2013 denial of compensation due to temporary
total disability for the accepted work conditions on February 25, March 29, April 1 and 4, 2013. Accordingly, the
Board will not address the lost wages claim for the period February 25 to April 4, 2013.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 31, 2007 appellant, then a 35-year-old window clerk, filed an occupational
disease claim asserting that repetitive lifting and placing boxes on the counter caused a pop in
her neck and lumbar region. OWCP accepted the claim for displacement of cervical
intervertebral disc without myelopathy, lumbar sprain, brachial radiculitis and cervical
spondylosis without myelopathy. Appropriate benefits were paid, including a July 14, 2011
C5-6 anterior cervical discectomy/fusion. Appellant eventually returned to work.
On September 4, 2012 appellant filed a Form CA-7, claim for a schedule award. In an
April 18, 2012 report, Dr. Bryon E. Strain, a Board-certified physiatrist, opined that she reached
maximum medical improvement on March 26, 2012 and had no restrictions. In his March 26,
2012 report, he noted that appellant’s examination of both the cervical and lumbar spine revealed
full range of motion with end range pain with extension. Strength was full throughout with
sensory intact to light touch. Straight leg raise was negative with a positive Fabers on the left.
Dr. Strain released appellant to work full duty with no restrictions.
In a separate unsigned report of March 26, 2012, Dr. Strain opined that appellant had six
percent impairment of the whole person for the cervical spine and zero percent impairment for
the whole person for the lower back under Chapter 17 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a September 27, 2012 report, OWCP’s medical adviser noted the history of injury and
his review of the medical records, including Dr. Strain’s March 26, 2012 report. He noted that
FECA does not provide schedule awards for the spine and impairment due to a spinal nerve
injury was best determined under the method described the July to August 2009 The Guides
Newsletter for Rating Spinal Nerve Extremity Impairment. The medical adviser recommended
that Dr. Strain provide an impairment determination under Proposed Table 1 of July to
August 2009 The Guides Newsletter or, if Dr. Strain was unable to do so, OWCP should refer
appellant for a second opinion for an impairment evaluation.
On October 16, 2012 OWCP requested that Dr. Strain provide an impairment opinion in
accordance with Proposed Table 1 of July to August 2009 The Guides Newsletter. In a
November 6, 2012 letter, Dr. Strain advised that he did not perform the March 26, 2012
impairment evaluation; rather Aaron Ford, a chiropractor, had performed the evaluation and
questions should be directed toward him.
In a February 20, 2013 report, Dr. Zvi Kalisky, a Board-certified phystatrist serving as a
second opinion examiner, noted the history of injury, his review of the statement of accepted
facts and the medical record and presented findings on examination. An impression of failed
neck surgery syndrome with nonverifable radicular symptoms in bilateral upper extremities with
no objective physical or electrodiagnostic findings of radiculopathy; status post anterior cervical
discectomy and fusion at C5-6; and chronic low back pain with no objective radicular findings.
Dr. Kalisky opined that appellant reached maximum medical improvement as of December 14,
2012, the date of her recent cervical computerized tomography scan. Using the sixth edition of
A.M.A., Guides and The Guides Newsletter July to August 2009, he opined that she had zero
percent bilateral upper and lower extremity impairments. For cervical radiculopathy,

2

Dr. Kalisky used Table 1 of The Guides Newsletter and opined that appellant had class 0 or zero
percent impairment for the right upper and left upper extremities for roots C5, C6, C7, C8 and
T1. This was based on the fact that appellant had no specific dermatomal distribution or pain or
paresthesias, there were no objective valid motor or sensory findings of cervical radiculopathy on
examination and the electromylogram and nerve conduction study were negative for cervical
radiculopathy. For lumbar radiculopathy, Dr. Kalisky utilized Table 2 of The Guides Newsletter
and opined that appellant had class 0 or zero percent impairment of the right and left lower
extremities for roots L3, L4, L5 and S1. This was based on no specific dermatomal distribution
of pain or paresthesias and no objective valid motor or sensory findings of lumbar radiculopathy
on examination.
On March 26, 2013 OWCP’s medical adviser reviewed the statement of accepted facts
along with the medical record, including Dr. Kalisky’s February 20, 2013 report. He opined that
appellant reached maximum medical improvement on December 14, 2012. Using Dr. Kalisky’s
examination findings, the medical adviser concurred that she had zero percent impairment of the
right and left upper extremities and zero percent impairment of the right and left lower
extremities under the A.M.A., Guides.
By decision dated March 29, 2013, OWCP denied appellant’s schedule award claim on
the grounds that the medical evidence of file failed to demonstrate a measurable impairment.
LEGAL PRECEDENT
The schedule award provision of FECA3 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.4
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.5 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a

3

Id. at § 8107.

4

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

5

Pamela J. Darling, 49 ECAB 286 (1998).

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schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.6
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition (July to
August 2009) is to be applied.7
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.8
ANALYSIS
OWCP accepted conditions of displacement of cervical intervertebral disc without
myelopathy, lumbar sprain, brachial radiculitis and cervical spondylosis without myelopathy and
paid appropriate benefits, including a C5-6 anterior cervical discectomy/fusion. By decision
dated March 29, 2013, it denied appellant’s schedule award claim on the grounds no ratable
impairment was established.
In an unsigned report of March 26, 2012, Dr. Strain9 opined that appellant had six percent
impairment of the whole person for the cervical spine and zero percent impairment for the whole
person for the lower back under Chapter 17 of the sixth edition of the A.M.A., Guides. As noted
above, there is no schedule award available for impairment to the cervical spine and FECA does
not provide for an impairment of the whole person.10 FECA also excludes the back as an organ
and, therefore, the back does not come under the provisions for payment of a schedule award.11
Thus, the March 26, 2012 report is of little probative value. OWCP properly referred appellant
for a second opinion evaluation on the advice of the medical adviser.

6

Thomas J. Engelhart, 50 ECAB 319 (1999).

7

A.M.A., Guides 533.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
9

Dr. Strain stated that the report was generated by a chiropractor. The Board has held that the opinion of a
chiropractor regarding a permanent impairment of a scheduled extremity or other member of the body is beyond the
scope of the statutory limitation of a chiropractor’s services. See Y.K., Docket No. 11-1623 (issued June 25, 2012).
A chiropractor is limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist. See Paul Foster, 56 ECAB 208 (2004).
10

N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

11

Francesco C. Veneziani, 48 ECAB 572 (1997). A schedule award is payable for a permanent impairment of
the extremities that is due to a work-related back condition; see Denise D. Cason, 48 ECAB 530 (1997).

4

In his February 20, 2013 report, Dr. Kalisky properly calculated appellant’s cervical
radiculopathy and lumbar radiculopathy impairments. For the cervical radiculopathy, he
properly utilized Table 1 of The Guides Newsletter and opined that she had class 0 or zero
percent impairment for the right upper and left upper extremities for roots C5, C6, C7, C8 and
T1, finding that there was no specific dermatomal distribution or pain or paresthesias, no
objective valid motor or sensory findings of cervical radiculopathy on examination and objective
studies were negative for cervical radiculopathy. For lumbar radiculopathy, Dr. Kalisky properly
utilized Table 2 of The Guides Newsletter and opined that appellant had class 0 or zero percent
impairment of the right and left lower extremities for roots L3, L4, L5 and S1, finding that there
was no specific dermatomal distribution of pain or paresthesias and no objective valid motor or
sensory findings of lumbar radiculopathy on examination. OWCP’s medical adviser reviewed
this report and agreed with Dr. Kalisky’s findings and the application of the A.M.A., Guides.
The Board finds that the weight of the medical evidence does not establish a ratable
impairment of either the bilateral upper or lower extremities as there is no medical evidence
establishing impairment of the upper or lower extremities, scheduled members, as a result of
appellant’s accepted cervical and lumbar spine conditions.
On appeal, appellant contends that there is a problem with the nerves in her neck despite
the fact that objective testing shows no nerve damage as she suffers from numbness and pain. As
noted above, the medical evidence does not establish a ratable impairment of either the bilateral
upper or lower extremities due to her accepted cervical and lumbar spine conditions.
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 has not established entitlement to a schedule award to
either of her bilateral upper or lower extremities.

5

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
FORCES COMMAND, SHIPYARDS FLEET
HRO, NORFOLK NAVAL SHIPYARD,
Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1225
Issued: November 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 18, 2016 appellant, through counsel, filed a timely appeal from an April 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction 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 sustained more than three percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On October 8, 2015 appellant, then a 65-year-old pipefitter, filed an occupational disease
claim (Form CA-2) alleging bilateral hearing loss as a result of employment-related noise
exposure. He worked as a pipefitter for the employing establishment from 2002 until he retired
on October 2, 2013. Appellant was exposed to loud noise from various pneumatic tools,
grinding, chipping, nitrogen tanks, testing systems, brazing torches, and metal cutting machines
for eight hours per day, five days per week.
On December 23, 2013 appellant filed a claim for a schedule award (Form CA-7).
OWCP referred appellant, together with a statement of accepted facts, to Dr. Jeffrey
Powell, a Board-certified otolaryngologist, for a second opinion evaluation on March 15, 2016.
An audiogram was completed on March 15, 2016 which revealed the following decibel (dB)
losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 20, 20, 25, and 25 for the right ear and 20, 25,
25, and 75 for the left ear. Speech reception thresholds were 20 dB bilaterally while auditory
discrimination scores were 96 percent on the right and 84 percent on the left. Appellant
complained of trouble hearing conversations, as well as difficulty hearing noisy equipment at
work, background noise, and multiple people talking. He further complained of constant high
pitch ringing in his ears which caused him to lose significant amounts of sleep.
Dr. Powell diagnosed severe bilateral tinnitus and bilateral high-frequency sensorineural
hearing loss, worse in left than right. He opined that appellant’s hearing loss was in part due to
his federal employment, noting that it was also caused from his civilian employment in shipyards
from 1975 to 2002. Dr. Powell explained that appellant continued to suffer from residuals of his
hearing loss as the ringing in his ears would continue in years to come as tinnitus. He
recommended bilateral hearing aids.
Applying the standard provided by the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment3 (A.M.A., Guides) to the
March 15, 2016 audiometric data, Dr. Powell calculated that appellant sustained 16.875 percent
monaural hearing impairment in the right ear and 0 percent monaural hearing impairment in the
left ear.4 No additional rating was provided for tinnitus and Dr. Powell did not calculate a
binaural hearing impairment.
By decision dated March 30, 2016, OWCP accepted appellant’s claim for bilateral highfrequency sensorineural hearing loss, bilateral tinnitus, and impaired auditory discrimination of
3

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

4

The Board notes that Dr. Powell mistakenly calculated the impairment rating for the left ear using the right ear
decibel losses and vice versa. As he correctly noted, appellant’s left ear hearing loss is worse than the right. As
such, he sustained 16.875 percent monaural hearing impairment in the left ear and 0 percent monaural hearing
impairment in the right ear.

2

the left ear. It further noted that the record established that appellant would benefit from hearing
aids.
On March 20, 2016 OWCP referred the case file to Dr. Jeffrey M. Israel, an OWCP
district medical adviser (DMA) and Board-certified otolaryngologist, to determine the extent of
appellant’s hearing loss and permanent impairment due to his employment-related noise
exposure. It noted that the claim had been accepted for bilateral high-frequency sensorineural
hearing loss, bilateral tinnitus, and impaired auditory discrimination of the left ear.
On April 3, 2016 Dr. Israel reviewed Dr. Powell’s March 15, 2016 otologic examination
report and agreed that appellant’s bilateral sensorineural hearing loss was due to occupational
noise exposure. He applied the audiometric data to OWCP’s standard for evaluating hearing loss
under the sixth edition of the A.M.A., Guides and determined that appellant sustained 0 percent
monaural hearing impairment in the right ear, 16.88 percent monaural hearing impairment in the
left ear, and a binaural hearing impairment of 2.8 percent.5
Dr. Israel added no percentage for tinnitus, noting no tinnitus handicap inventory was
available. He concluded that hearing aids were authorized and noted the date of maximum
medical improvement (MMI) as March 15, 2016.
By decision dated April 12, 2016, OWCP granted appellant a schedule award for three
percent binaural hearing loss. The date of MMI was determined to be March 15, 2016, the date
of audiogram performed with Dr. Powell’s examination. The award covered a period of six
weeks from March 15 through April 25, 2016 and the weekly pay was computed at the 75
percent augmented rate for employees with dependents.
LEGAL PRECEDENT
The schedule award provision of FECA6 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
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
5

Id.

6

Supra note 2.

7

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

3

the ability to hear everyday speech under everyday conditions.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.9
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.10 The A.M.A., Guides state that if tinnitus
interferes with [activities of daily living], including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation, and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12 OWCP may follow the advice
of its medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.13
ANALYSIS
OWCP accepted appellant’s claim for bilateral high-frequency sensorineural hearing loss,
bilateral tinnitus, and impaired auditory discrimination of the left ear. The issue is whether
appellant was properly awarded three percent binaural hearing loss for which he received a
schedule award. The Board finds that this case is not in posture for decision.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Powell, a
Board-certified otolaryngologist, for a second opinion evaluation on March 15, 2016. Dr. Powell
diagnosed severe bilateral tinnitus and work-related bilateral high-frequency sensorineural
hearing loss, worse in left ear than the right. He opined that appellant sustained 0 percent
monaural hearing impairment in the right ear and 16.875 percent monaural hearing impairment
in the left ear. Dr. Powell did not provide any additional impairment for tinnitus.
OWCP referred the medical evidence to Dr. Israel, the DMA, for a rating of permanent
impairment in accordance with the A.M.A., Guides.14 Dr. Israel opined that appellant sustained
8

See A.M.A., Guides 250.

9

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
10

See A.M.A., Guides 249.

11

Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, 55 ECAB 570 (2004).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
13

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

14

See Hildred I. Lloyd, 42 ECAB 944 (1991).

4

0 percent monaural hearing impairment in the right ear, 16.88 percent monaural hearing
impairment in the left ear, or a binaural hearing impairment of 2.8 percent based on the results of
the March 15, 2016 audiogram and Dr. Powell’s second opinion report. OWCP’s April 12, 2016
decision was based largely on Dr. Israel’s recommendation.
Using the March 15, 2016 audiogram, Dr. Israel averaged appellant’s right ear hearing
levels of 20, 20, 25, and 25 dB at 500, 1,000, 2,000, and 3,000 Hz, which totaled 22.5. Because
this average was below the fence of 25 dB, he determined that appellant had zero percent right
ear monaural hearing loss. Dr. Israel then averaged appellant’s left ear hearing levels of 20, 25,
25, and 75 dB at 500, 1,000, 2,000, and 3,000 Hz, which totaled 36.25. After subtracting out a
25 dB fence, he multiplied the remaining 11.25 balance by 1.5 to calculate a 16.88 percent left
ear monaural hearing loss (rounded up from 16.875).15 Dr. Israel then calculated 2.8 percent
binaural hearing loss by multiplying the lesser right ear loss of 0 percent by 5, adding the greater
16.88 percent left ear loss, and dividing this sum by 6. He concluded that hearing aids were
authorized and noted the date of MMI as March 15, 2016.
The A.M.A., Guides allows for compensation of up to five percent for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living.16 In this case, Dr. Powell diagnosed severe bilateral tinnitus and explained that
appellant continued to suffer from residuals of his work-related injury in the form of tinnitus and
ringing in the ears. He noted that appellant complained of trouble hearing conversation,
difficulty hearing noisy equipment at work, background noise, and multiple people talking.
Dr. Powell further noted that appellant’s tinnitus caused him to lose significant hours of sleep.
He provided a detailed description of appellant’s symptoms pertaining to tinnitus and how the
condition interfered with his activities of daily living. However, no additional rating was
provided for tinnitus.
The Board finds Dr. Powell’s report sufficient to require OWCP to further develop the
medical evidence to determine the extent of impairment for tinnitus.17 Accordingly, the Board
will remand the case to OWCP.
OWCP awarded appellant three percent binaural hearing loss, an award which covered a
period of six weeks from March 15 through April 25, 2016. A schedule award provides for
payment of compensation for a specific number of weeks as prescribed by the statute.18 FECA
provides that a claimant is entitled to 52 weeks of compensation for 100 percent loss of hearing
in one ear and 200 weeks compensation for 100 percent hearing loss in both ears. OWCP used
three percent binaural hearing loss impairment (rounded up from 2.8) to calculate the period of
the award. Multiplying three percent by the 200 weeks provided for binaural hearing loss results
in a total of 6 weeks of compensation. With respect to the 17 percent left ear monaural hearing
15

The policy of OWCP is to round the calculated percentage of impairment to the nearest whole point. Results
should be rounded down for figures less than .5 and up for .5 and over. See FECA Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.3.b (January 2010); Carolyn E. Sellers, 50 ECAB 393, 394 (1999).
16

See Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

17

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

18

5 U.S.C. § 8107.

5

loss impairment (rounded up from 16.88), multiplying 17 percent by the 52 weeks for monaural
hearing loss results in a total of 8.84 weeks of compensation.
The Board notes that if the allowance for monaural hearing loss would be greater than
that for binaural hearing loss, the claimant should receive the benefit of the more favorable
allowance.19 Thus the Board finds that OWCP improperly awarded three percent binaural
hearing loss allowance for six weeks of compensation. Rather, appellant should have been
awarded 8.84 weeks of compensation for the more favorable allowance of 17 percent left ear
monaural hearing loss.20 Following this and any other further development deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s schedule award claim.21
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: November 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

M.M., Docket No. 15-1719 (issued November 2, 2015).

20

C.f., T.H., Docket No. 07-965 (issued August 6, 2007).

21

See P.K., Docket No. 08-2551 (issued June 2, 2009); see also Horace Langhorne, 29 ECAB 820 (1978).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORP BASE DISPENSARY CAMP YERMO,
Barstow, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1898
Issued: April 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 27, 2016 appellant filed a timely appeal of a June 15, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss
compensation benefits based on his capacity for earnings in the constructed position of managermerchandise.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 2011 appellant, then a 57-year-old heavy mobile equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that he injured his shoulders and lower back
opening fire doors on September 19, 2011. The initial medical evidence dated September 19,
2011 diagnosed sprained shoulders. In a September 29, 2011 note, Dr. Jayaraja Yogaratnam, an
orthopedic surgeon, noted that appellant reported injury to both shoulders and his lower back.
He also noted that appellant had a prior low back injury on March 29, 2011, but was discharged
for treatment for this condition on August 18, 2011. Dr. Yogaratnam diagnosed bilateral
shoulder pain and lower back pain. Dr. Khaled Sanadiki, a Board-certified pediatrician,
diagnosed shoulder sprains on October 31, 2011.
OWCP accepted his claim for
acromioclavicular (AC) sprain and sprain of the shoulders and upper arms as well as bilateral
calcifying tendinitis on November 9, 2011.2
Dr. Rajiv Puri, a Board-certified orthopedic surgeon, examined appellant on January 23,
2012 and diagnosed right rotator cuff tears, left tendinitis and herniated disc L4-5. He performed
authorized arthroscopy subacromial decompression of appellant’s right shoulder on
November 8, 2012. In a note dated April 8, 2013, Dr. Puri diagnosed tendinitis of the shoulders
and herniated disc in the lumbar spine.
The employing establishment terminated appellant’s employment on April 30, 2012.
Dr. James Matiko, a Board-certified orthopedic surgeon, examined appellant on
August 8, 2013 and noted his history of injury. He noted appellant’s complaints of left shoulder
pain and lumbar spine injury on March 29, 2011. Dr. Matiko reviewed appellant’s left shoulder
magnetic resonance imaging (MRI) scan and diagnosed AC joint arthritis, superior labrum
anterior to posterior (SLAP) lesion, and partial thickness tearing of both supraspinatus and
subscapularis tendons. He recommended left shoulder surgery.
OWCP referred appellant for a second opinion evaluation with Dr. Ronnie Ghazal, a
Board-certified orthopedic surgeon. The SOAF provided to Dr. Ghazal noted the accepted
conditions and the date of injury. Dr. Ghazal reviewed appellant’s history on May 3, 2013
noting that he had been discharged from care for an August 18, 2011 lumbar spine injury, and
that he had previously sustained a right shoulder injury in 2010. Appellant was also on light duty
due to a chemical reaction. During this examination, he reported that his back was most painful,
but Dr. Ghazal indicated that he was not addressing this aspect of appellant’s claim. Dr. Ghazal
performed a physical examination, reviewed appellant’s medical records and test results and
diagnosed rotator cuff tendinopathy of the left shoulder and continued mechanical symptoms and
rotator cuff weakness of the right shoulder following arthroscopy. He opined that appellant
could not return to his date-of-injury position, but could perform modified duty eight hours a day
with restrictions of lifting no more than 15 pounds and no work above shoulder level.
2

The initial statement of accepted facts (SOAF) dated July 11, 2012 listed prior employment injuries. On
May 20, 2009 File No. xxxxxx633, appellant sustained for bilateral edema, bilateral hammer toe, bilateral contusion
of the toes, and bilateral deformities of the ankle and foot. In his January 1, 2010 File No. xxxxxx935, appellant
sustained sprain of the right supraspinatus tendon in the shoulder and upper arm. In a September 19, 2011 File No.
xxxxxx802, OWCP accepted AC sprain bilaterally, respectively.

2

Dr. Ghazal reviewed appellant’s August 2, 2013 left shoulder MRI scan on September 17, 2013
and recommended left shoulder surgery including left shoulder arthroscopy, acromioplasty,
labral resection with biceps tenodesis and possible rotator cuff repair.
Appellant reported continued low back symptoms on May 15, 2013. He indicated that he
had experienced severe back pain since his injury and had fallen several times. On May 27,
2013 appellant requested treatment for his left shoulder and extreme pain in the lower back.
In a note dated January 22, 2014, Dr. Matiko noted that appellant wished to postpone his
approved left shoulder surgery to address his low back and lower extremity conditions.
OWCP referred appellant for vocational rehabilitation services on April 4, 2014. It noted
that Dr. Ghazal’s report and work restrictions were considered to be the weight of the medical
opinion evidence. OWCP authorized training for appellant on June 30, 2014 as a medical/billing
coding clerk or hospital admitting clerk. Appellant began training at Four D College on
July 23, 2014. He completed his coursework by April 16, 2015 and began his externship on
April 23, 2015. Appellant completed the externship on June 19, 2015. Four D College closed on
July 14, 2015. He was unable to take the certification test or to obtain his diploma despite
completing the medical billing/coding program at Four D College due to the schools closure.
OWCP authorized additional training for appellant with U.S. Colleges from September 14
through October 30, 2015 to complete his training in medical billing/coding.
On August 27, 2015 OWCP reassigned appellant to another vocational rehabilitation
counselor. The second vocational rehabilitation counselor amended appellant’s training plan for
two new jobs, safety manager and manager-merchandise, which required Occupational Safety
and Health Administration (OSHA) training. Appellant agreed to the new short-term training
from OSHA running from September 28 through November 19, 2015 for skills, education, and
certification to work in the health and safety fields.
In a letter dated September 24, 2015, OWCP found that the positions of safety manager
and manager-merchandise, were within appellant’s limitations and directed him to cooperate
fully to return to work in a position similar to these. The position of manager-merchandise was
classified as sedentary, required two to four years of specific vocational preparation, and was
being performed in sufficient numbers to make it reasonably available. Appellant met the
specific vocational preparation based on his approximately two years of college, and strong
transferable skills in management and related fields. The vocational rehabilitation counselor
noted that three of the five positions identified did not require lifting over the shoulder.
Appellant successfully completed his OSHA training program by November 20, 2015
and was scheduled to participate in placement services from November 20, 2015 through
February 17, 2016.
OWCP referred appellant for a second opinion evaluation with Dr. Michael J. Einbund, a
Board-certified orthopedic surgeon, on January 15, 2016. In the SOAF referred to Dr. Einbund,
OWCP noted that during the September 19, 2011 employment injury appellant felt a pull in both
shoulders and his back. On January 21, 2016 appellant contacted OWCP and requested
treatment for his back condition which began with the employment injury.

3

In his February 25, 2016 report, Dr. Einbund reviewed appellant’s history of injury on
September 19, 2011 describing pulling in both of appellant’s shoulders as well as in his low
back. He noted in March 2011 appellant experienced a low back injury and underwent treatment
approximately until his September 2011 injury. Appellant reported bilateral shoulder pain and
persistent low back pain. Dr. Einbund noted that appellant had two preexisting back injuries. He
noted, “I am unaware of the details of these prior injuries, however, there may be some
preexisting disability in this regard.” Dr. Einbund diagnosed tendinosis of the right shoulder
with weakness of the deltoid and shoulder flexors as well as limited range of motion. Based on
MRI scan results, appellant’s left shoulder conditions included tear of the supraspinatus tendon,
and labral tear. Clinical examination demonstrated impingement sign and limited range of
motion. Dr. Einbund recommended left shoulder surgery. OWCP asked that Dr. Einbund
describe appellant’s physical limitation from his work-related and preexisting conditions.
Dr. Einbund indicated that appellant could not lift, push, or pull more than 15 pounds and could
not reach above shoulder level. He opined that appellant was capable of performing the position
of safety manager.
The vocational rehabilitation counselor requested an additional placement period for
appellant beginning on March 2, 2016 and OWCP extended his placement period through
April 30, 2016.
In a letter dated March 5, 2014, appellant requested further treatment of his back injury.
He alleged that his back had worsened and that he experienced severe back spasm on a regular
basis.
On April 30, 2016 the vocational rehabilitation counselor opined that appellant’s starting
salary would be $15.00 per hour. OWCP completed a memorandum on May 4, 2016 and noted
that appellant underwent two one-week sessions to obtain OSHA safety certificates for the
vocational goals of safety manager and manager-merchandise. Both of the selected positions
were at the sedentary work level. OWCP selected that position of manager-merchandise and
noted that this position was consistent with appellant’s work restrictions and that no overhead
reaching was required based on the labor market surveys. It found that appellant was capable of
performing the duties of manager-merchandise, that this position was vocationally suitable, and
that the position existed in sufficient numbers in appellant’s commuting area. OWCP found that
the $15.00 per hour salary was appropriate.
On May 5, 2016 OWCP proposed to reduce appellant’s compensation for wage loss
based on the finding that he was not totally disabled and was capable of earning wages as a
manager-merchandise at the rate of $600.00 per week.
Appellant contacted OWCP on May 12, 2016 and indicated that he filed a recurrence of
disability (Form CA-2a) in his back claim.3 In a letter dated May 17, 2016, he indicated that his
back condition should be recognized as arising in his current claim. Appellant noted that, while
he might be capable of performing sedentary work with restrictions, he was currently utilizing
medications which caused drowsiness and dizziness due to his chronic back pain. He submitted
form reports from Dr. Puri dated January 23, 2012, February 20, March 21, May 2, 30,
3

File No. xxxxxx395.

4

October 17, November 21, 2012, February 6, and March 11, 2013. Dr. Puri diagnosed lumbar
strain, degenerative disc disease in the lumbar spine, and herniated lumbar disc. He indicated
that appellant was totally disabled.
By decision dated June 15, 2016, OWCP found that the constructed position of managermerchandise reasonably represented appellant’s wage-earning capacity and reduced his wageloss compensation benefits effective June 26, 2016. It found that the weight of the medical
evidence established that appellant was not totally disabled and that the vocational rehabilitation
counselor determined that the position of manager-merchandise was reasonably available and
within appellant’s physical and vocational abilities.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.5
Section 8115 of FECA6 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity, or the employee has no actual earnings, his wage-earning capacity is determined with due
regard to the nature of his injury, the degree of physical impairment, his usual employment, his
age, his qualifications for other employment, the availability of suitable employment, and other
factors or circumstances which may affect his wage-earning capacity in his disabled condition.7
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the condition.8
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.9
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
4

James M. Frasher, 53 ECAB 794 (2002); J.E., Docket No. 16-0006 (issued November 16, 2016).

5

20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. § 8115.

7

Id.

8

William H. Woods, 51 ECAB 619 (2000).

9

John D. Jackson, supra note 5.

5

perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by
OWCP for selection of a position, listed in the Department of Labor’s Dictionary of Occupational
Titles or otherwise available in the open market, that fits that employee’s capabilities with regard to
his physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick11 will result in the percentage of the employee’s loss of
wage-earning capacity. The basic range of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay.12
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s
wage-loss compensation benefits based on his capacity for earnings in the constructed position of
manager-merchandise.
OWCP has the burden of establishing that appellant is capable of performing the duties of
the selected position considering his accepted injury-related condition and any preexisting
conditions. Appellant has consistently reported low back pain both preexisting and as a result of
his September 19, 2011 employment injury. The initial medical records support both bilateral
shoulder and a low back conditions. OWCP did not accept or address a back condition resulting
from appellant’s employment injury on September 19, 2011, but the record is replete with
appellant’s reports of continuing low back pain.
OWCP procedures instruct that the claims examiner is responsible for determining
whether the medical evidence establishes that the claimant is able to perform the selected jobs,
taking into consideration medical conditions due to the accepted work-related injury or disease
(including those accepted under other claims which may or may not have been
doubled/combined with the instant case file), and any preexisting medical conditions.13
OWCP based appellant’s work restrictions initially on Dr. Ghazal’s May 3, 2013 report.
While he reviewed appellant’s history noting a preexisting lumbar spine injury, and noted that
appellant reported that his back was most painful, Dr. Ghazal indicated that he was not
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.1
(February 2011); John D. Jackson, supra note 5.
11

5 ECAB 376 (1953).

12

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4(b) (June 2013).

6

addressing this aspect of appellant’s claim. This report explicitly excludes discussion of any
preexisting back condition and resulting disability and is insufficient to meet OWCP’s burden of
proof to establish that appellant could perform the constructed position of manager-merchandise.
OWCP then referred appellant for an additional second opinion evaluation with
Dr. Einbund, and in the accompanying SOAF noted that during the September 19, 2011
employment injury appellant felt a pull in both shoulders and his back. In his February 25, 2016
report, Dr. Einbund reviewed appellant’s history of injury on September 19, 2011 describing
pulling in both of appellant’s shoulders as well as in his low back. He noted that in March 2011
appellant experienced a low back injury and underwent treatment approximately until his
September 19, 2011 employment injury. Appellant reported persistent low back pain to
Dr. Einbund. Dr. Einbund noted that appellant had two preexisting back injuries. Although he
reported knowledge of these prior injuries, he noted that there could be some preexisting
disability in this regard, but not elaborate. OWCP asked that Dr. Einbund describe appellant’s
physical limitation from his work-related and any preexisting conditions. In response,
Dr. Einbund indicated that appellant could not lift, push, or pull more than 15 pounds and could
not reach above shoulder level. Dr. Einbund opined that appellant was capable of performing the
position. His report does not clearly establish that the work restrictions included appellant’s
preexisting back conditions and any resulting disability. As such, Dr. Einbund’s report is
insufficient to meet OWCP’s burden of proof.
As OWCP has not submitted sufficient medical evidence to establish the extent of
appellant’s disability due to his preexisting conditions, OWCP has not met its burden of proof to
reduce appellant’s wage-loss compensation benefits.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s
wage-loss compensation benefits based on his capacity for earnings in the constructed position of
manager-merchandise.

7

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 4, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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

Docket No. 17-0323
Issued: July 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 29, 2016 appellant filed a timely appeal from two September 16, 2016
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a dental
condition caused by an accepted April 20, 2016 employment injury; and (2) whether she
established entitlement to disability compensation for periods June 10 to July 27, 2016 causally
related to the April 20, 2016 employment injury.

1

5 U.S.C. § 8101 et seq.

On appeal appellant asserts that the record establishes that her dental condition was
caused by the April 20, 2016 employment injury and that she is entitled to disability
compensation for the hours claimed.
FACTUAL HISTORY
On April 20, 2016 appellant, then a 57-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that she was injured in a motor vehicle accident when the employing
establishment vehicle, in which she was a passenger, was hit by another car while she was in the
performance of duty. She reported abrasions to the left breast and right abdomen, difficulty
breathing, and pain in the neck, back, and hip. Appellant stopped work that day.
An April 20, 2016 City of Long Beach collision report indicated that appellant, a frontseat passenger, complained of neck and chest pain, but refused to be transported for treatment
and told the investigating officers that she would seek her own treatment. A federal motor
vehicle accident report dated April 22, 2016, signed by appellant, indicated that she had
difficulty breathing and neck pain following the accident, was evaluated by paramedics, and was
encouraged to go to employee health or her own physician.
In April 22, 2016 reports, Dr. Ramin Alizadeh, a Board-certified internist, noted the
history of injury and appellant’s complaint of neck and back pain. He indicated that at the time
of the motor vehicle accident, appellant was wearing a seatbelt and that the airbag did not
deploy. Appellant’s past history included degenerative disc disease of the cervical, thoracic, and
lumbar spines. Examination of the head and neck demonstrated mild cervical spine and
paraspinal muscle tenderness. Dr. Alizadeh diagnosed neck and low back pain. He prescribed
medication and physical therapy, and advised that appellant could return to work with a 10pound lifting restriction. Appellant began physical therapy on April 27, 2016.
A May 4, 2016 report from Dr. Joyce Kahng, a dentist, noted appellant’s history that she
had been in a motor vehicle accident and would need to have a retainer rebonded. Appellant
explained that after the accident she had intense pain in her upper shoulder and neck area, and as
that subsided, she started to notice pain in her jaw. She related that she had seen her periodontist
who told her that a splint was broken. Dr. Kahng advised that appellant’s periodontal splint was
broken in several places and this caused several teeth to displace. She removed the broken splint
and rebonded the teeth in place. Dr. Kahng indicated that she could not say for sure, but it was a
possibility that the splint broke from impact during the motor vehicle accident. Appellant had an
additional dental appointment with Dr. Kahng on May 24, 2016. On June 7, 2016 Dr. Kahng
indicated that appellant had problems biting her lip and was concerned that the retainer had
debonded. On examination the retainer appeared within normal limits. Dr. Kahng advised that,
if appellant continued to have problems with occlusion, an adjustment could be recommended.
On June 7, 2016 OWCP accepted strain of muscle at neck and strain of muscle of lower
back.
On May 20, 2016 appellant was seen at an urgent care facility by Heidi Wang, a
physician assistant, and Dr. Thomas Ryu, an osteopath. The report noted the history of injury
and that appellant denied head trauma, but continued to have neck stiffness, lower back

2

tenderness, and occasional paresthesia radiating down the left leg. Examination demonstrated
pain in the cervical and lumbar regions. Neck and lower back strains were diagnosed. Appellant
was advised that she could perform modified duty.
Appellant accepted a modified job offer on May 26, 2016 of “counseling, case
management,” with restrictions of no pushing, pulling, lifting, squatting, or bending.
Appellant filed a claim for compensation (Form CA-7) for intermittent wage-loss
compensation for the period June 10 to July 13, 2016. She requested 8 hours compensation on
June 10 and 13, 2016 for a doctor visit and off duty; 3.5 hours for physical therapy on June 16,
2016; 3 hours for physical therapy on June 20, 2016; 2.5 hours compensation for a magnetic
resonance imaging (MRI) scan on June 22, 2016; 2.5 hours compensation for physical therapy on
June 23, 2016; 5.5 hours compensation for a doctor visit on June 24, 2016; 40 hours
compensation for the period June 27 to July 1, 2016 for doctor visits, physical therapy and off
duty; 40 hours’ compensation for the period July 4 to 8, 2016 for physical therapy, and off duty;
and 24 hours’ compensation for July 11 to 13, 2016 for doctor visits. Appellant filed a second
claim for compensation for total disability from July 14 to 27, 2016.
In a June 10, 2016 form report, Dr. Ryu noted that he released appellant from work
because she was not improving as expected. He recommended further studies. On June 13,
2016 Ms. Wang advised that appellant could return to modified duty that day with restrictions on
her physical activity of no lifting, pushing, pulling, bending, stooping, squatting, kneeling, or
climbing. Chelsea Sobiech, a director at Weststar Physical Therapy advised that appellant
attended physical therapy there on June 20, 2016.
A June 22, 2016 MRI scan of the lumbar spine showed straightening of lumbar lordosis,
disc protrusions at L2-3, L4-5, and L5-S1 with foraminal narrowing and disc desiccation.
On June 24, 2016 Dr. Ryu reported that appellant’s neck and back pain were worse
despite physical therapy and that she thought she had post-traumatic stress disorder. He
described lumbar spine tenderness on examination and indicated that appellant appeared anxious.
Dr. Ryu noted the MRI scan findings and diagnosed sprain of the neck and lumbar spine. He
advised that appellant needed a psychology referral and should remain off work. On July 1,
2016 Dr. Ryu repeated his findings and conclusions. He recommended that appellant remain off
work until seen by an orthopedic surgeon. On July 13, 2016 Dr. Ryu advised that appellant
should remain off work until July 27, 2016.
On July 25, 2016 Dr. A. Michael Moheimani, an orthopedic surgeon, advised that
appellant could return to work with no forceful pushing or pulling, no lifting over 10 pounds, no
repetitive bending or stooping, and that she should sit or stand as needed to alleviate pain. He
indicated that she would require a lightweight laptop.
By letter dated July 28, 2016, OWCP informed appellant of the evidence needed to
support her claim for a dental condition. This included her dentist’s opinion, supported by a
medical explanation, as to how the motor vehicle accident on April 20, 2016 caused or
aggravated a dental condition.

3

On July 27, 2016 the employing establishment informed OWCP that appellant received
continuation of pay from April 21 to May 27, 2016,2 was off work from May 28 to June 9, 2016,
stopped work on June 10, 2016, and had not returned.
By letter dated July 27, 2016, OWCP informed appellant that she would be paid
compensation for 14.5 hours of the claimed 137 hours for the period June 10 through July 13,
2016 and continuing disability compensation for July 14 through 27, 2016. It informed her of
the evidence needed to support the additional compensation she claimed.
On July 28, 2016 OWCP paid appellant compensation for 14.5 hours including 4 hours
each for June 10, 13, and 24, 2016 and 2.5 hours for June 22, 2016. It noted that claims for
additional compensation remained under development. Appellant accepted a modified job offer
on July 29, 2016.
In an August 3, 2016 statement, appellant indicated that she began work at the employing
establishment on February 22, 2016. She provided a timeline beginning with the April 20, 2016
motor vehicle accident, stating that a staff member drove her back to the employing
establishment and she was seen in the clinic that afternoon. Appellant had x-rays and was
prescribed medication. She returned to work the next day despite pain and continued to work.
Appellant advised that she did not initially note jaw pain due to severe neck pain and because her
eyeglasses had to be adjusted after the car accident. She indicated that she worked until June 10,
2016, returned on June 14, 2016, and continued working until July 1, 2016. Appellant described
her medical and dental care.
On August 4, 2016 appellant forwarded progress notes from Dr. Kahng including the
appointments on May 4 and 24, 2016, described above. On July 20, 2016 Dr. Kahng
recommended a guard to help with grinding or clinching at night. A statement for the May 4,
2016 appointment was included. In an August 3, 2016 report, Dr. Todd Miller, a periodontist,
reported that he examined appellant on May 3, 2016 and noticed that the bonding material that
splinted her lower anterior teeth together was fractured and broken. He noted that appellant
reported that she had recently been in a car accident and her bite had not felt the same since.
Dr. Miller advised her to see her general dentist to have the bonding replaced.
Appellant also forwarded a physical therapy billing statement from Weststar Physical
Therapy. This statement noted the accepted conditions and showed that she had physical therapy
on June 16, 20, 23, and 27, and July 1 and 5, 2016. Appellant also forwarded copies of e-mails
with employing establishment personnel and an ergonomic assessment of her workstation. She
thereafter submitted treatment notes from Dr. Ryu dated June 10 to July 13, 2016. Dr. Ryu noted
that appellant reported that the April 20, 2016 motor vehicle accident caused dental damage and

2

This is contradicted by appellant’s August 3, 2016 statement, discussed infra. She did not claim wage-loss
compensation until June 10, 2016.

4

continuing neck and back pain. He described tenderness on examination of the neck and lumbar
spine, diagnosed neck and lower back strains, and prescribed medication.3
In a July 25, 2016 report, Dr. Moheimani noted the history of injury and appellant’s
report that she was wearing her seatbelt and that airbags did not deploy. He advised that she did
not recall striking any body parts, but developed neck and back pain. On Dr. Moheimani’s
examination appellant complained of neck pain radiating into the shoulders, back pain radiating
into the left lower extremity, numbness and weakness of the left upper and left lower extremity,
and grinding her teeth. He provided detailed examination findings, noting decreased cervical
and thoracolumbar range of motion. No tenderness was found and sensory and motor testing
was normal throughout. Straight leg raising, sitting, and supine was negative. Dr. Moheimani
reviewed x-rays and the lumbosacral MRI scan dated June 22, 2016. He diagnosed cervical and
lumbosacral sprains with radicular symptoms, disc herniations at L4-5 and L5-S1, a left foot
sprain with history of prior bunion surgery, and preexisting midfoot arthritis. Dr. Moheimani
opined that these conditions were the result of the April 20, 2016 motor vehicle accident. He
advised that appellant could return to modified duty on July 28, 2016. Dr. Moheimani
recommended physical therapy, a cervical spine MRI scan, and a psychiatry consultation if
appellant’s anxiety persisted.
On August 15, 2016 Dr. David Webb, chief of occupational health at the employing
establishment and a Board-certified internist, noted that after review of appellant’s medical
records no further evaluation was warranted.
Dr. Kahng reported that appellant had dental appointments on August 17 and 23, 2016.
On September 14, 2016 the employing establishment advised that appellant had been
terminated during her probationary period due to failure to demonstrate satisfactory work
performance.
By decision dated September 16, 2016, OWCP denied appellant’s claim for a dental
condition caused by the April 20, 2016 motor vehicle accident. It found that the evidence she
submitted from her dentists did not contain sufficient explanation as to how or why the April 20,
2016 accident caused her claimed dental condition.
In a second September 16, 2016 decision, OWCP denied appellant’s claim for
compensation for 122.50 hours from June 10 to July 13, 2016 and total disability compensation
from July 14 to 27, 2016 resulting from the accepted conditions of neck and low back strains. It
listed all the evidence received, including a billing statement from “Choloca Sobioch Physical
Therapy.” OWCP found there was either no medical evidence and/or insufficient medical
evidence to pay compensation for the additional hours claimed and that the medical evidence did
not establish continued disability from work.
3

Appellant also filed a claim for intermittent compensation for the period July 29 to August 9, 2016 and
August 11 to 24, 2016, and August 26, 2016, not at issue in the present appeal. She also submitted information
regarding claims for reimbursement of medical expenses, her request for accommodation and ergonomic
assessment, and medical evidence that postdated the dates at issue in this appeal. Appellant also requested that
OWCP approve counseling.

5

LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.4 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.5 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that a dental condition or need for
dental treatment was caused by the April 20, 2016 employment-related motor vehicle accident.
In his August 3, 2016 report, Dr. Miller, appellant’s periodontist, indicated that he
examined appellant on May 3, 2016 and noticed that the bonding material that splinted her lower
anterior teeth together was fractured and broken. While he noted that appellant reported that she
had recently been in a car accident and that her bite had not felt the same since, he merely
advised her to see her general dentist to have the bonding replaced. Dr. Miller did not provide an
opinion on the cause of any dental condition. The Board has long held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.7
Dr. Kahng, appellant’s general dentist, noted on May 4, 2016 that appellant reported that
she had been in a motor vehicle accident and could need to have a retainer rebonded, noting that
after the accident she had intense pain in her upper shoulder and neck area, and as that subsided,
she started to notice jaw pain. She advised that appellant’s periodontal splint was broken in
several places causing several teeth to displace. Dr. Kahng removed the broken splint and
rebonded the teeth in place. She indicated that she could not say for sure, but it was possible that
the splint broke from impact during the motor vehicle accident. On May 24, 2016 Dr. Kahng
indicated that, although appellant was concerned that the retainer had debonded, on examination
the retainer appeared within normal limits. Her opinion that there was a “possibility” that the
splint broke from impact during the motor vehicle accident is insufficient to establish causal
relationship. Medical opinions, such as this, which are speculative or equivocal in character,
have little probative value.8

4

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

5

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

6

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

7

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

8

Frank Luis Rembisz, 52 ECAB 147 (2000).

6

The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.9 Appellant submitted no such evidence in this case, and has thus
failed to meet her burden of proof.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.11 Furthermore, whether a
particular injury causes an employee to be disabled for employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative,
and substantial medical evidence.12
OWCP procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed.13 A claimant who has returned to work following an accepted
injury or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.14 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during offduty hours is not reimbursable.15 The evidence should establish that a claimant attended an
examination or treatment for the accepted work injury on the dates claimed in order for
compensation to be payable.16 For a routine medical appointment, a maximum of four hours of
9

Patricia J. Glenn, 53 ECAB 159 (2001).

10

See K.T., Docket No. 14-218 (issued June 11, 2015).

11

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

12

Fereidoon Kharabi, 52 ECAB 291 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment,
Chapter 2.901.19 (February 2013).
14

Id. at Chapter 2.901.19.a.

15

Id. at Chapter 2.901.19.a(2).

16

Id. at Chapter 2.901.19.a(3).

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compensation may be allowed. However, longer periods of time may be allowed when required
by the nature of the medical procedure and/or the need to travel a substantial distance to obtain
the medical care. The claims for wage loss should be considered on a case-by-case basis.17
ANALYSIS -- ISSUE 2
Regarding appellant’s claim for intermittent wage loss for the medical treatments for the
period June 10 to 24, 2016, for a total of 33 hours, she requested 8 hours compensation on
June 10 and 13, 2016 for doctor visit and off duty; 3.5 hours for physical therapy on June 16,
2016; 3 hours for physical therapy on June 20, 2016; 2.5 hours compensation for her MRI scan
on June 22, 2016; 2.5 hours compensation for physical therapy on June 23, 2016; and 5.5 hours
compensation for a doctor visit on June 24, 2016. OWCP paid compensation for 14.5 hours: 4
hours each for doctor visits on June 10, 13, and 24 2016, and 2.5 hours on June 22, 2016 for a
lumbar MRI scan. It did not pay the additional 4 hours claimed on June 13 and 20, 2016, and
only paid 4 hours, not the claimed 5.5 hours on June 24, 2016. Appellant also claimed 3.5 hours
compensation on June 16, 2016 for physical therapy, and 3 hours compensation of June 20, 2016
for physical therapy. OWCP, therefore, denied 4 hours compensation claimed for June 10
and 13, 2016, 1.5 hours compensation on June 24, 2016, and 6.5 hours claimed for physical
therapy on June 16 and 20, 2016.
As noted, wages lost for compensable medical examinations or treatment may be
reimbursed. The evidence should establish that a claimant attended an examination or treatment
for the accepted work injury on the dates claimed in order for compensation to be payable, and
for a routine medical appointment, a maximum of four hours of compensation may be allowed.18
However, wage loss is payable only if the examination, testing, or treatment is provided on a day
which is a scheduled workday and during a scheduled tour of duty. Wage-loss compensation for
medical treatment received during off-duty hours is not reimbursable.19
The Board finds that the record does not contain sufficient information regarding exactly
when and what hours appellant worked beginning June 10, 2016. The employing establishment
reported on July 27, 2016 that appellant stopped work on June 10, 2016 and had not returned.
Appellant, however, reported that she returned to work on June 14, 2016 and continued working
until July 1, 2016. The case must therefore be remanded to OWCP regarding appellant’s
disability claims prior to July 14, 2016. As noted, wage loss is payable only if the examination,
testing, or treatment is provided on a day which is a scheduled workday and during a scheduled
tour of duty. Wage-loss compensation for medical treatment received during off-duty hours is
not reimbursable.20
Upon remand, OWCP should request that the employing establishment furnish
documentation regarding appellant’s work status beginning June 10, 2016 with specific
17

Id. at Chapter 2.901.19.c.

18

Id. at Chapter 2.901.19.a, c.

19

Id. at Chapter 2.901.19.a(2).

20

Id. at Chapter 2.901.19.a(2).

8

information regarding the days and hours worked, to be followed by an appropriate decision on
the disability claimed for this period.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a dental
condition causally related to the April 20, 2016 employment injury or that she was totally
disabled for the period July 14 to 27, 2016 due to accepted conditions. The Board further finds
the case is not in posture for decision regarding claimed disability for the period June 10 to
July 13, 2016.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of
Workers’ Compensation Programs denying an employment-related dental condition is affirmed.
The September 16, 2016 decision regarding claimed disability compensation is affirmed in part
and set aside in part, and the case is remanded to OWCP for proceedings consistent with this
opinion of the Board.
Issued: July 7, 2017
Washington, DC

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

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

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

9