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

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Appearances:
Dionne E. Webster-Cox, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-908
Issued: July 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 8, 2013 appellant, through her attorney, filed a timely appeal from an
October 24, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied her disability compensation claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she was
disabled from work for the period November 2, 2009 to January 25, 2010 as a result of her
employment-related conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 12, 2010 appellant, then a 33-year-old mail clerk, filed an occupational disease
claim alleging that she sustained nerve damage and foot strain as a result of constantly being on
her feet on hard concrete in the performance of duty. She first became aware of her condition
and realized it resulted from her employment on September 27, 2009. Appellant did not stop
work. OWCP accepted her claim for left foot and leg pain and neuritis on the left side.
In an October 16, 2009 progress note, Dr. Jeffrey Schwalb, a podiatrist, related
appellant’s complaints of fairly constant, sharp and burning-type discomfort in the medial aspect
of her left ankle at the deltoid ligament and tarsal tunnel area. Upon examination, he observed
that pain elicited upon direct palpation of the medial aspect left ankle at the level of the deltoid
ligament and at the level of the tarsal tunnel. No pain was elicited upon direct palpation anterior,
lateral or posterior ankle mortise. Tinel’s sign was mildly positive. Dr. Schwalb diagnosed left
medial ankle synovitis with inflammation of deltoid ligament secondary to pathomechanics.
In a December 3, 2009 electromyography (EMG) and nerve conduction study, Dr. Sheila
Simpson, Board-certified in physical medicine and rehabilitation, related appellant’s complaints
of pain, numbness and tingling in the left ankle and foot since October 2009. She observed
moderate electrodiagnostic evidence of a left superficial peroneal sensory neuropathy.
Dr. Simpson reported normal nerve conduction studies of the left medial and left lateral plantar
nerves with no evidence of a left tarsal tunnel syndrome and normal studies of the left peroneal,
left posterior tibial and left sural nerves with no evidence of a left lumbar radiculopathy.
In a February 23, 2010 medical note, Dr. Lawrence B. Rubin, a podiatrist, indicated that
he examined appellant on February 23, 2010. He diagnosed mid-foot strain causing joint pain
and neuritis of interim-dorsal cutan nerves.
In a March 9, 2010 report, Dr. Jeffrey Kraft, an osteopath, stated that appellant had been
his patient for several years and had suffered from chronic mid-foot strain, which caused joint
pain and neuritis of the intermediate dorsal cutaneous nervea. He opined that this condition was
directly related to her employment, which required standing for eight hours a day working on a
machine.
In an April 14, 2010 report, Dr. Kraft noted that appellant was seen in his office on
September 8, October 12 and 16, 2009 and February 16, 2010. He stated that appellant
developed a sore left foot and leg due to standing eight hours a day at work.
On August 18, 2010 appellant submitted a claim for disability compensation for the
period November 2, 2009 to January 25, 2010. In an undated statement, she explained that in
September 2009 her leg and foot began to bother her. On September 30, 2009 appellant felt an
enormous amount of pain in her left leg and took aspirin. She stated that the next two days were
her off days so she nurtured her leg with muscle relaxer cream. On October 2, 2009 appellant
returned to work even though she was still in pain. On October 8, 2009 she went to see her
doctor because she was in so much pain that she could hardly stand. Appellant stated that she
had to be off work for a few weeks in October and then again from November 3, 2009 through

2

January 23, 2010. She reported that she underwent two x-rays and an ultrasound but it was not
until she had an EMG that her podiatrist diagnosed her with nerve damage.
On August 24, 2010 OWCP advised appellant that the evidence submitted was
insufficient to establish that she was disabled from work as a result of her employment injury for
the period November 2, 2009 to January 25, 2010 and requested additional evidence to establish
her claim.
In a September 13, 2010 report, Dr. Schwalb stated that appellant was initially examined
on October 16, 2009 with the chief complaint of fairly constant, sharp, burning-type discomfort
in the left ankle and leg. He noted that a diagnostic EMG and NCV study was performed and
revealed left superficial peroneal sensory neuropathy. Dr. Schwalb opined that appellant was
unable to work from November 2, 2009 to January 25, 2010 as a result of her presenting
condition and treatment regimens.
In a decision dated February 10, 2011, OWCP denied appellant’s claim for disability
compensation for the period November 2, 2009 to January 25, 2010 finding that the medical
evidence failed to establish that she was totally disabled during that period as a result of her
employment injury.
On March 3, 2011 appellant requested a hearing, which was held on June 10, 2011. She
stated that one day while she was working her leg started hurting and it just would not go away.
When the pain became so unbearable appellant sought medical treatment from her doctor. She
continued to work, but the pain became more intolerable so she kept returning to the doctor for
treatment. Appellant was referred to Dr. Schwalb who put a cast on her leg in November 2009.
She explained that the only treatment she received from November 2009 to February 2010 was
when Dr. Schwalb put a cast on her leg and told her to stop work. Appellant stated that she did
not have any other accidents or injuries or experience any changes in her work duties around
November 2009.
In progress notes dated October 19 and 26, November 2, 23 and 30, December 10 and 30,
2009, and January 13, 2010, Dr. Schwalb related his treatment of appellant’s left foot and ankle.
Appellant stated that she still felt discomfort in the medial aspect of the left ankle, but it felt
better with a wrap on. Dr. Schwalb noted that she had an unna boot dressing. Upon
examination, he observed no edema in the left ankle and pain elicited upon direct palpation of
the medial aspect of the left ankle. Range of motion of the left ankle was decreased with mild
discomfort. Dr. Schwalb stated that appellant’s left ankle remained symptomatic but somewhat
improved. He diagnosed medial synovitis of the left ankle with inflammation of deltoid
ligament. Dr. Schwalb recommended that appellant keep her foot immobilized and the boot
dressing dry and intact. In a November 23, 2009 report, he noted that he removed the cast and
recommended that she continue with a surgical shoe. X-rays were negative for fracture or
dislocation. In a November 30, 2009 report, Dr. Schwalb stated that appellant remained
symptomatic despite three weeks of immobilization. He noted that an EMG indicated a
neurological component such as tarsal tunnel syndrome or radiculopathy. In December 10 and
30, 2009 reports, Dr. Schwalb stated that appellant remained off work at this time. In a
January 13, 2010 report, he stated that she may return to work on January 25, 2010.

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In a January 20, 2010 disability certificate, Dr. Schwalb indicated that appellant was
totally incapacitated from November 2, 2009 to January 25, 2010. He noted that she could return
to work on January 25, 2010 with no restrictions.
In a May 24, 2011 report, Dr. Kraft stated that appellant had been his patient since
May 2004. He noted that, on October 8, 2009, she began to complain of leg and foot pain with
swelling and related that she believed it was caused from standing at work for eight hours a day.
Dr. Kraft noted diagnoses of medial ankle synovitis with inflammation of deltoid ligament
secondary to “path mechanics.” He reviewed her medical records and treatment. Dr. Kraft
opined that appellant was unable to work from November 2, 2009 to January 25, 2010 due to her
foot injury caused by nerve damage as a result of standing eight hours a day.
In disability certificates dated from April 29 and August 17, 2010, and February 1 and
May 31, 2011, Dr. Rubin stated that appellant was totally incapacitated from April 29 to May 9,
2010; August 17 to 30, 2010; February 1 to 6, 2011; and May 24 to June 3, 2011 for neuritis and
chronic pain. He noted that appellant was not ready to return to work and recommended rest and
elevation. Appellant also submitted handwritten progress notes from Dr. Rubin dated from
February 23, 2010 to May 31, 2011.
By decision dated August 5, 2011, an OWCP hearing representative modified the
February 10, 2011 decision denying appellant’s claim for disability compensation. It affirmed
that the evidence did not establish that appellant was totally disabled for the period November 2,
2009 to January 25, 2010. OWCP also found, however, that appellant was entitled to up to four
hours of wage-loss compensation for medical treatment on November 2, 23 and 30, December 3,
10 and 30, 2009 and January 13, 2010.
On December 12, 2011 appellant, through counsel, submitted a request for
reconsideration. She alleged that appellant was injured while performing job duties and this
injury left her temporarily totally disabled from November 2, 2009 to January 25, 2010.
In a December 1, 2011 report, Dr. Schwalb stated that appellant was off work from
November 2, 2009 to January 25, 2010 due to medial ankle synovitis with associated superficial
peroneal sensory neuropathy of the left lower extremity. He opined that excessive weight
bearing required by her employment exacerbated her condition and rendered her more
symptomatic, which could lead to further disability.
In a decision dated October 24, 2012, OWCP denied modification of the August 5, 2011
decision denying appellant’s claim for disability compensation for the period November 2, 2009
to January 25, 2010.
LEGAL PRECEDENT
Under FECA, the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.2 For each period of
disability claimed, the employee must establish that he or she was disabled for work as a result of
2

See Prince E. Wallace, 52 ECAB 357 (2001).

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the accepted employment injury. Disability is not synonymous with a physical impairment
which may or may not result in incapacity to earn the wages. An employee who has a physical
impairment causally related to a federal employment injury but who nonetheless has the capacity
to earn wages he or she was receiving at the time of the injury has no disability as that term is
used in FECA.3
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. Whether a particular injury
causes an employee to become disabled for work and the duration of that disability are medical
issues that must be proved by a preponderance of reliable, probative and substantial medical
opinion evidence.4 Such medical evidence must include findings on examination and the
physician’s opinion, supported by medical rationale, showing how the injury caused the
employee disability for his or her particular work.5 The Board will not require OWCP to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify his or her disability and entitlement to compensation.6
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.7
ANALYSIS
OWCP accepted appellant’s claim for left foot and leg pain and left foot neuritis.
Appellant claimed that she was disabled from work for the period November 2, 2009 to
January 25, 2010 as a result of her employment injury. OWCP paid compensation for medical
treatment on November 2, 23 and 30, December 3, 10 and 30, 2009, and January 13, 2010.
Appellant bears the burden to establish through medical evidence that she was totally disabled
for the remaining time period and that her disability was causally related to her accepted injury.8
The Board finds that this case is not in posture for decision.
The Board notes initially that the reports from Dr. Simpson and Dr. Rubin were silent
regarding the issue of disability. The relevant medical evidence of record consists mostly of
progress notes from Dr. Schwalb dated from October 16, 2009 to September 13, 2010. He
observed that pain elicited upon direct palpation of the medial aspect of the left ankle and
decreased range of motion with mild discomfort. Tinel’s test was mildly positive. Dr. Schwalb
diagnosed left ankle medial synovitis with inflammation of deltoid ligament. He recommended
3

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

5

Dean E. Pierce, 40 ECAB 1249 (1989).

6

Amelia S. Jefferson, supra note 4.

7

Jimmy A. Hammons, 51 ECAB 219 (1999).

8

Supra note 4; see also V.P., Docket No. 09-337 (issued August 4, 2009).

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that appellant keep her foot immobilized in a cast and keep the boot dressing dry and intact. In a
November 30, 2009 report, Dr. Schwalb stated that appellant remained symptomatic despite
three weeks of immobilization. He noted that an EMG indicated a neurological component such
as tarsal tunnel syndrome or radiculopathy. In December 10 and 30, 2009 reports, Dr. Schwalb
stated that appellant remained off work at this time. In a January 13, 2010 report, he stated that
appellant may return to work on January 25, 2010. In a January 20, 2010 disability note and
September 13, 2010 report, Dr. Schwalb opined that appellant was unable to work from
November 2, 2009 to January 25, 2010 as a result of her present condition and treatment
regimens. In a December 1, 2011 report, Dr. Schwalb explained that appellant was off work
from November 2, 2009 to January 25, 2010 due to medial ankle synovitis with associated
superficial peroneal sensory neuropathy of the left lower extremity.
As previously stated, proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.9 The Board notes that, while none of Dr. Schwalb’s reports are completely rationalized,
they are consistent in indicating that appellant was disabled from work as a result of her left foot
condition for the period November 2, 2009 to January 25, 2010.
Dr. Schwalb diagnosed left ankle medial synovitis with inflammation of deltoid ligament
and reported that an EMG suggested a neurological component such as tarsal tunnel syndrome or
radiculopathy. He recommended that appellant keep her left ankle immobilized and also noted
that after three weeks of immobilization appellant remained symptomatic. In a January 20, 2010
disability note and September 13, 2010 report, Dr. Schwalb stated that she was unable to work
from November 2, 2009 to January 25, 2010 due to her medial ankle synovitis with associated
superficial peroneal sensory neuropathy of the left lower extremity and treatment regimens.
Although his reports do not fully describe why appellant was disabled, he does provide an
unequivocal opinion, based on examination and diagnostic findings, that appellant was unable to
work for the period November 2, 2009 to January 25, 2010. The Board also notes that
Dr. Schwalb’s opinion on disability is not contradicted by any substantial medical or factual
evidence of record. Instead, other physicians, such as Dr. Kraft, also opined that appellant was
unable to work from November 2, 2009 to January 25, 2010 due to her left foot condition. While
these reports are insufficient to meet appellant’s burden of proof to establish her claim, they raise
an uncontroverted inference between her condition and her inability to work for the period
November 2, 2009 to January 25, 2010 and are sufficient to require OWCP to further develop the
medical evidence and case record.10
Accordingly, the Board will remand the case to OWCP. On remand, OWCP should
prepare a statement of accepted facts which includes a detailed employment history, job
description and specific functions performed by appellant. It should further develop the medical
record to determine whether appellant has established that she was totally disabled as a result of
her left foot condition for the period November 2, 2009 to January 25, 2010. Following this and

9

Supra note 7.

10

See N.B., Docket No. 12-1368 (issued January 28, 2013).

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any other further development as deemed necessary, OWCP shall issue an appropriate merit
decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 19, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
John DeGeneres, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1227
Issued: October 20, 2021

Case Submitted on the Record

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

JURISDICTION
On May 29, 2020 appellant, through counsel, filed a timely appeal from a March 18, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b).
Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R.
§ 501.5(a). In support of appellant’s oral argument request, counsel asserted that oral argument should be granted in
order for appellant to provide argument on whether his work factors contributed to his bilateral knee osteoarthritic
condition. The Board, in exercising its discretion, denies appellant’s request for oral argument, finding that the
arguments on appeal could adequately be addressed based on the case record. Oral argument in this appeal would
further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied
and this decision is based on the case record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a bilateral knee
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 22, 2017 appellant, then a retired 64-year-old letter carrier, filed an
occupational disease claim (Form CA-2) alleging that factors of his federal employment
contributed to his bilateral knee osteoarthritis. He noted that he first became aware of this
condition and its relationship to his federal employment on June 7, 2017. In a narrative statement
dated March 30, 2017, appellant described his letter carrier duties as very physical. He began
working for the employing establishment in 1980. Appellant retired in January 2014. He related
that he was unsure as to the date his bilateral knee arthritis first developed and explained that he
would slip, fall, trip, or stumble in the winter months at least a dozen times while delivering mail.
In support of his claim, appellant submitted medical evidence covering the period
February 21, 1974 through June 7, 2017.
The record contains progress notes covering the period January 15 through July 21, 2015
from Dr. Ira K. Evans, a Board-certified orthopedic surgeon. Dr. Evans summarized appellant’s
medical history including that he was seen years ago for significant right knee lateral compartment
osteoarthritis. He reviewed diagnostic tests, provided examination findings, and diagnosed right
knee end-stage valgus patellofemoral osteoarthritis with effusion.
A December 3, 2015 x-ray revealed severe right knee lateral predominant degenerative
changes with chondrocalcinosis and valgus deformity.
The record contains progress notes dated December 3, 2015 and April 21, 2016 from
Dr. Andrew Albert Freiberg, a Board-certified orthopedic surgeon, who diagnosed bilateral knee
primary osteoarthritis and noted a total right knee replacement surgery had been scheduled.
The record contains an April 21, 2016 x-ray, which revealed severe right knee degenerative
changes and left knee meniscal chondrocalcinosis with mild tricompartmental degenerative
change.
On May 10, 2016 appellant underwent right total knee arthroplasty.
In progress notes dated May 26, 2016, Kristin A. Wood, a certified nurse practitioner,
reported that appellant underwent total right knee replacement surgery on May 10, 2016. She
reviewed diagnostic test, provided examination findings, and diagnosed right knee osteoarthritis.

3

5 U.S.C. § 8101 et seq.

2

The record contains a June 7, 2016 x-ray report, which noted right total knee arthroplasty,
no evidence of hardware complication, and evidence of gout involving both p opliteus tendons.
In a March 23, 2017 report, Dr. Justin W. Kung, a Board-certified radiologist, noted that
he reviewed appellant’s January 12, 2017 left knee x-ray and determined that appellant had mild
degenerative change in the left knee medial compartment.
In a June 7, 2017 report, Dr. Bryon V. Hartunian, an orthopedic surgery specialist,
reviewed appellant’s employment history and duties, and noted that he had retired in January 2014.
He provided examination findings and diagnosed status post right total knee replacement for endstage degenerative arthritis and primary left knee joint arthritis with 3.0 millimeter cartilage
interval at medial femorotibial joint. Appellant stated that his work duties required carrying a 35pound satchel while walking seven to eight miles per day, occasional lifting/carrying of 70 pounds,
entering and exiting a delivery truck 200 times daily, ascending and descending hundreds of stairs
in all types of weather, and walking over different types of terrain. Dr. Hartunian noted that
appellant’s work also required repetitive twisting, bending, lifting, stooping, squatting, stair
climbing, and reaching. He asserted that appellant’s bilateral knee degenerative osteoarthritis was
“likely” aggravated by his work activities as a letter carrier. Dr. Hartunian indicated that arthritis
occurred due to chronic inflammation caused by repeated local stress on cartilage surfaces. He
related, “With less resilience, the cartilage becomes more susceptible to wear and tear of the
impact-loading activities, which in turn results in an accelerated loss of articular cartilage as a
result of those activities. This is what happened to [appellant] as documented in his medical
records.” Dr. Hartunian explained that arthritis is caused by a well-described biological/chemical
process where excessive impact loading and repeated stresses on the cartilage surface result in
chronic inflammation resulting in a chemical change in the cartilage, most significantly the
proteoglycans, which are responsible for cartilage resistance. He opined, in conclusion, that there
was no doubt that the high-impact loading activities engaged in by appellant in his employment
position contributed to the development and progression of his bilateral knee arthritis.
In a development letter dated November 3, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of medical
and factual evidence necessary to support his claim and provided a questionnaire for his
completion. OWCP specifically noted that evidence was needed to establish that appellant had
filed his claim in a timely manner. A separate development letter of even date requested additional
information from the employing establishment. OWCP afforded both parties 30 days to submit
the requested information.
By decision dated December 13, 2017, OWCP denied appellant’s claim, finding that he
failed to file a timely claim within the requisite three-year time limit under section 8122(a) of
FECA (5 U.S.C. § 8122(a)). It found that the date of last exposure was January 2, 2014 and that
he had not filed his occupational disease claim until September 22, 2017.
On December 21, 2017 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, which was subsequently converted
to a request for a review of the written record in lieu of a telephonic hearing.

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Dr. Hartunian, in a report dated June 5, 2018, provided clarification regarding the cause of
appellant’s diagnosed bilateral knee osteoarthritis. He referred to OWCP’s causation definition
for acceleration of arthritis and the example given of 15 years of substantial walking, noting
appellant’s 34-year career and work activities caused and contributed to the diagnosed bilateral
knee arthritis. Dr. Hartunian attributed the development and progression of appellant’s bilateral
knee arthritis to the high-impact loading work activities required by appellant’s letter carrier job.
By decision dated August 17, 2018, OWCP’s hearing representative affirmed the
December 13, 2017 decision as modified. She determined that because appellant was not aware
of and could not have reasonably been aware of the relationship between his diagn osed bilateral
knee condition and his employment until March 30, 2017, appellant’s claim was timely filed. The
hearing representative also found, however, that the medical evidence of record was insufficient
to establish that appellant’s bilateral knee osteoarthritis was causally related to or aggravated by
his accepted employment factors.
On July 31, 2019 appellant, through counsel, requested reconsideration. In support of his
request, he submitted a July 17, 2019 addendum report by Dr. Hartunian and a June 17, 2019 report
by Dr. Kung.
In his report dated June 17, 2019, Dr. Kung noted that he reviewed appellant’s January 15,
2015 right knee x-ray and determined that appellant had severe degenerative change in the right
knee lateral compartment.
Dr. Hartunian, in his July 17, 2019 addendum, explained that the use of the phrase “most
likely” meant a certainty of 95 percent. He explained that he was aware of appellant’s prior golf
injury and gout diagnosis, which he explained did not negate the contribution of appellant’s severe
and repetitive impact loading work activities to the diagnosed bilateral knee osteoarthritis.
By decision dated October 25, 2019, OWCP denied modification.
On December 18, 2019 appellant, through counsel, requested reconsideration, asserting
errors of law in the prior decision.
By decision dated March 18, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty, as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment

4

Supra note 3.

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injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 10
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of his claim, appellant submitted a series of reports from Dr. Hartunian,
including a June 7, 2017 report in which he diagnosed status post right total knee replacement for
end-stage degenerative arthritis and primary left knee joint arthritis with 3.0 millimeter cartilage
interval at medial femorotibial joint and opined that his bilateral knee osteoarthritis was caused or
aggravated by his employment duties. In his reports, Dr. Hartunian demonstrated that he had a
proper history of appellant’s employment position as a letter carrier and recounted the specific
duties that he performed over the course of his postal carrier. He correctly indicated that
appellant’s work required repetitive walking, bending, squatting, stooping, twisting, lifting,
climbing, and reaching activities while carrying a mail satchel. In his June 5, 2018 addendum
report, Dr. Hartunian explained that the job of a letter carrier, over a 34-year career, can and does
5

M.R., Docket No. 19-1954 (issued March 1, 2021); E.S., Docket 18-1580 (issued January 23, 2020); M.E., Docket
No. 18-1135 (issued January 4, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57
ECAB 364 (2006).
6

M.R., id.; E.S., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
7

E.S., supra note 5; R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238,
241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

E.S., supra note 5; M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

5

accelerate arthritis because of the continuous walking, lifting, and climbing, which had hastened
appellant’s osteoarthritis. He explained, physiologically, that there was no doubt that the highimpact loading activities appellant engaged in as a letter carrier contributed to the development
and progression of his arthritic conditions. Dr. Hartunian provided a direct opinion that arthritis
is caused by a well-described biological/chemical process where excessive impact loading and
repeated stresses on the cartilage surface result in chronic inflammation resulting in a chemical
change in the cartilage, most significantly the proteoglycans, which are responsible for cartilage
resistance. He explained how the less resilient the cartilage becomes, the more susceptible it is to
the wear and tear of the impact-loading activities, which in turn results in an accelerated loss of
articular cartilage as a result of those activities. Likewise, in his July 17, 2019 supplemental
addendum, Dr. Hartunian noted his awareness of appellant’s prior golf injury and gout diagnosis,
but opined that they did not negate the contribution of appellant’s severe and repetitive impact
loading work activities to the diagnosed bilateral knee osteoarthritis.
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. 11 While Dr. Hartunian’s reports do not contain
sufficient rationale to discharge appellant’s burden of proof by the weight of the reliable,
substantial, and probative evidence that his bilateral knee osteoarthritis was caused or aggravated
by the accepted employment factors, these reports raise an inference of causal relationship
sufficient to require further development of the case record by OWCP. 12
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
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to an appropriate specialist. The physician shall provide a rationalized opinion as to whether
the diagnosed bilateral knee conditions are causally related to the accepted factors of appellant’s
federal employment in his former position as a letter carrier. If the physician opines that the
diagnosed conditions are not causally related, he or she must explain, with rationale, how or why
his or her opinion differs from that of Dr. Hartunian. Following this and such other further
development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

A.D., Docket No. 20-0758 (issued January 11, 2021); J.H., Docket No. 18-1637 (issued January 29, 2020). See
also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).
12

See A.D., id.; T.K., Docket No. 20-0150 (issued July 9, 2020); John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).
13

S.B., Docket No. 20-1458 (issued March 5, 2021); S.S., Docket No. 20-1141 (issued December 14, 2020); A.P.,
supra note 11; Phillip L. Barnes, 55 ECAB 426 (2004).

6

IT IS HEREBY ORDERED THAT the March 18, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1968
Issued: April 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 23, 2009 appellant filed a timely appeal from an April 2, 2009 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the July 16, 2008 wage-earning
capacity determination should be modified.
FACTUAL HISTORY
In the present case, the record indicates that three claims for injury have been combined
under the current case file. The original claim was an occupational disease or illness claim
(Form CA-2) on February 26, 1997, which was accepted for left thumb tenosynovitis. When
appellant returned to work on November 3, 1997, she injured her back in a lifting incident. The
Office has accepted lumbar strain, L5-S1 herniated disc, aggravation of L4-5 spinal stenosis,
postlaminectomy syndrome and lumbosacral disc degeneration. In addition, it accepted bilateral

carpal tunnel syndrome under OWCP File No. xxxxxx395, which has been combined with the
present case file.
Appellant worked intermittently until she returned to work full time in a modified clerk
position on March 27, 2008. The employing establishment indicated that appellant’s pay rate
was $1,116.48 per week.
By decision dated July 16, 2008, the Office determined that appellant’s wage-earning
capacity was represented by actual earnings in the modified position. Its computations indicated
that the current pay rate for the date-of-injury position, with night differential and Sunday
premium, was $1,144.18 per week. As appellant’s actual earnings were $1,116.48 weekly, there
was a two percent loss of wage-earning capacity.
On December 19, 2008 the Office received claims for compensation (Form CA-7) and
time analysis forms (Form CA-7a) indicating that appellant had stopped working on
November 4, 2008. Appellant submitted reports from Dr. Roy Durrett, an anesthesiologist. In a
report dated November 4, 2008, Dr. Durrett stated that appellant continued to complain of low
back pain radiating into the right leg. He provided results on examination and diagnosed
postlaminectomy syndrome.
In a November 18, 2008 report, Dr. Durrett diagnosed
“postlaminectomy syndrome with chronic intractable pain -- worsening pain and spasm triggered
by current activities. I do not feel [appellant] can do much squatting or bending which I have
told her in the past as have her other doctors but it is currently required of her.” He indicated
that appellant should be off work for two weeks. In a December 2, 2008 report, Dr. Durrett
stated that appellant should remain off work for a few more weeks and should refrain from
bending or lifting when she did return. In a report dated January 29, 2009, he indicated that a
computerized tomography (CT) scan had shown “no new obvious changes or pathology.”
By decision dated April 2, 2009, the Office denied modification of the wage-earning
capacity determination.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.1 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.2
ANALYSIS
The Office issued a wage-earning capacity determination dated July 16, 2008 based on
actual earnings in a modified clerk position. Appellant did not offer any argument that the
July 16, 2008 determination was erroneous. Generally, wages actually earned are the best
1

Sue A. Sedgwick, 45 ECAB 211 (1993).

2

Id.

2

measure of a wage-earning capacity and, in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.3 Appellant had been working in the position more than 60 days and the
employing establishment indicated it was a permanent position.4 The Office determines
appellant’s wage-earning capacity using her actual earnings and the current pay rate for the job
held at the time of injury.5 There was no evidence that the wage-earning capacity determination
was in violation of Office procedures or was otherwise erroneous.
The issue of vocational rehabilitation or retraining was not raised and is not relevant in
this case. The remaining issue is whether appellant has established a material change in the
nature and extent of the employment-related condition. In this case, the Board finds that the
medical evidence does not establish a material change. Dr. Durrett reported on November 4,
2008 that appellant continued to have back pain and, in his November 18, 2008 report, he
referred to worsening pain and spasm triggered by current activities. In the January 29, 2009
report, Dr. Durrett indicated that a CT scan had been done to see if a cause could be determined
for appellant’s complaints of pain, but he indicated that no new changes or pathology were
found. The medical reports of record do not establish a material change in an employmentrelated condition on or after November 4, 2008 sufficient to warrant modification of the wageearning capacity determination. Dr. Durrett does not opine that appellant’s postlaminectomy
syndrome had undergone a material change, or provide medical rationale to support such an
opinion.
On appeal, appellant states that the pain increased after her return to full-time work and
her physician told her it was nerve damage that would not show on diagnostic tests, but this issue
is a medical issue that must be resolved by medical evidence, and the Board notes that
Dr. Durrett stated in his January 29, 2009 report there were no nerves with any obvious
compression. As noted above, the party attempting to modify a wage-earning capacity
determination has the burden of proof. The Board finds that appellant did not meet her burden of
proof in this case.
CONCLUSION
The Board finds that appellant did not establish that the July 16, 2008 wage-earning
capacity determination should be modified.

3

Dennis E. Maddy, 47 ECAB 259 (1995).

4

Office procedures require that the claimant must have been working for 60 days and if her date-of-injury job
was permanent, the wage-earning capacity determination must be based on a permanent position. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7
(July 1997).
5

20 C.F.R. § 10.403; Albert C. Shadrick, 5 ECAB 376 (1953).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 2, 2009 is affirmed.
Issued: April 2, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Independence, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kevin A. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-812
Issued: December 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 4, 2009 appellant filed a timely appeal from a schedule award decision of
the Office of Workers’ Compensation Programs dated May 27, 2008 and a November 10, 2008
decision that denied his request for reconsideration. Pursuant to 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 his burden of proof to establish that he has
more than a 22 percent impairment of the left upper extremity for which he received schedule
awards; and (2) whether the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a). On appeal appellant, through his attorney,
argues that the Office improperly denied merit review by its November 10, 2008 decision
because he had submitted new and relevant evidence that established entitlement to a left upper
extremity schedule award greater than that awarded.

FACTUAL HISTORY
On October 21, 1996 appellant, then a 43-year-old mail handler, filed a Form CA-2,
occupational disease claim, alleging that heavy lifting and throwing mailbags caused a right
shoulder injury. He did not stop work. On March 10, 1997 the Office accepted right shoulder
impingement syndrome as employment related and corrective surgery was performed on
April 2, 1997. On December 24, 1997 appellant filed a second occupational disease claim,
alleging that moving heavy equipment caused left shoulder tendinitis. On January 29, 1998 the
Office accepted this claim for aggravation of acromioclavicular arthritis, left and impingement
syndrome of the left shoulder. Appellant underwent left diagnostic arthroscopy acromioplasty
on March 11, 1998. On August 3, 1998 he was granted a schedule award for 11 percent
impairment of the right shoulder and on June 25, 1999 a schedule award for a 16 percent
impairment of the left upper extremity. Appellant had additional left shoulder procedures on
December 6, 2000 and June 17, 2002. By decision dated September 30, 2003, the Office
determined that his actual wages as a modified mail handler fairly and reasonably represented his
wage-earning capacity, finding that he had zero percent loss. On March 17, 2004 he had a fourth
left upper extremity surgical procedure.1
In September 2006, the Office determined that, a conflict in medical evidence was
created between the opinions of appellant’s attending Board-certified orthopedist, Dr. Steven
Joyce, and Dr. Kathryn Hedges, a Board-certified neurologist who provided a second opinion
evaluation for the Office regarding whether appellant had reflex sympathetic dystrophy or a
chronic regional pain syndrome.2 Appellant retired on disability effective October 12, 2006. In
April 2007, the Office referred him to Dr. Donohoe, Board-certified in neurology, for an
impartial evaluation. In a May 3, 2007 report, Dr. Donohoe provided examination findings and
advised that appellant had a complex regional pain syndrome directly related to the surgeries
described in the statement of accepted facts, particular the surgery for thoracic outlet syndrome.
He stated, “in my opinion the basic requirements according to the 5th edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) are
met.”
On May 21, 2007 appellant filed a schedule award claim. By letter dated June 4, 2007,
the Office informed him of the type of evidence needed to support the claim and on June 28,
2007 accepted the condition of complex regional pain syndrome, reflex sympathetic dystrophy
(RSD) of the left upper limb. In an August 8, 2007 report, Stanley Butts, Ph.D., a licensed
psychologist, diagnosed pain disorder with both psychological factors and a general medical
condition, generalized anxiety disorder and complex regional pain syndrome and advised that
appellant was unable to work. By reports dated September 13 and October 25, 2007, Dr. Joyce
1

After each procedure appellant returned to modified duty.

2

Dr. Joyce had been appellant’s attending physician for many years, performing the 1997, 1998, 2000 and 2002
surgical procedures. Dr. Hedges examined appellant on June 28, 2006. The Office initially referred him to
Dr. Michael E. Ryan, a Board-certified neurologist, who provided reports dated October 17, 2006 and January 5 and
February 9, 2007. Dr. Ryan advised that appellant had a 20 percent left upper extremity impairment. Finding his
reports not well reasoned, the Office referred appellant to Dr. Charles D. Donohoe, also Board-certified in
neurology.

2

advised that on February 26, 2004 he increased appellant’s permanent impairment of the left
upper extremity to 20 percent due to significant loss of motion and decreased strength and that,
based on the continuation of symptoms of RSD, he would add 5 percent for a regional pain
syndrome, for a total left upper extremity impairment of 25 percent.
On January 18, 2008 the Office referred appellant to Dr. George Varghese, a Boardcertified physiatrist, for an impairment evaluation. In a February 13, 2008 report, Dr. Varghese
noted that he examined appellant on February 11, 2008 and reported his past medical history
including multiple surgical procedures and electromyographic findings of mild carpal tunnel
syndrome. He advised that the only finding suggestive of reflex sympathetic dystrophy on
examination of the left shoulder was hyperesthesia in the C5 dermatome and possibly in the C8,
T1 dermatome and noted some disuse atrophy of the serratus anterior and shoulder girdle
muscles. Range of motion findings of the left shoulder were 125 degrees of forward flexion,
50 degrees of extension, 130 degrees of abduction, 50 degrees of adduction and 60 degrees of
internal and external rotation, with mild weakness of the serratus anterior and external and
internal rotation and shoulder abduction. Dr. Varghese provided analysis in accordance with the
A.M.A., Guides,3 finding an eight percent impairment due to loss of shoulder motion, a seven
percent impairment due to loss of strength and a nine percent impairment for pain and sensory
deficit. He combined the ratings to find a 22 percent impairment of the left upper extremity.
By letter dated February 22, 2008, an Office medical adviser noted that he agreed with
Dr. Varghese’s range of motion and strength impairment ratings, but asked that the physician
provide additional explanation regarding his pain and sensory determination, in accordance with
the A.M.A., Guides.4
In an April 8, 2008 report, Dr. Varghese advised that his examination did not show
evidence of reflex sympathetic dystrophy and therefore he had not utilized section 16-2.5e of the
A.M.A., Guides regarding complex regional pain syndrome. He stated that appellant’s pain and
hypesthesia of the C-5, C-8 and T-1 dermatomes should be taken as a residual nerve injury,
secondary to previous surgery. By report dated April 11, 2008, an Office medical adviser
advised that maximum medical improvement was reached on February 11, 2008. He stated that,
with the additional rationale provided by Dr. Varghese in his April 8, 2008 report, appellant was
entitled to a 22 percent permanent impairment of the left upper extremity. By report dated
May 12, 2008, the Office medical adviser noted that appellant had previously received a
schedule award for a 16 percent impairment of the left upper extremity and was therefore entitled
to an additional award of 6 percent. On May 27, 2008 appellant was granted a schedule award
for an additional six percent impairment of the left upper extremity, for a total of 18.72 weeks, to
run from February 11 to June 21, 2008.
3

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

4

On February 14, 2008 the Office referred appellant to Dr. James Gregory Hunter, a Board-certified psychiatrist,
for a psychiatric second opinion evaluation. In a report dated March 10, 2008, Dr. Hunter diagnosed dysthymia,
generalized anxiety disorder, pain disorder due to a general medical condition, complex regional pain syndrome,
severe chronic pain and inability to work. He advised that appellant’s depressive disorder and anxiety disorder were
secondary to the development of chronic pain and recommended consultation with a psychiatrist to assist in
medication management for optimal pain relief and for his depression and anxiety disorders. On March 28, 2008 the
Office accepted the conditions of dysthymic disorder and generalized anxiety disorder.

3

On October 6, 2008 appellant requested reconsideration, contending that the schedule
award was in error because it did not take into account the accepted conditions of dysthymic
disorder or generalized anxiety disorder. He submitted a copy of Dr. Hunter’s March 10, 2008
report and a June 23, 2008 report in which Dr. Donohoe reiterated his prior findings and
conclusions. Appellant noted that on examination that day he was in obvious pain and had
weakness of abduction of the left shoulder graded at 4.5/5. He concluded:
“In summary, I would concur with prior observations regarding the level of
impairment with respect to his left shoulder. In that regard, I would use a figure
of 25 percent. My major difference with prior observation centers about the pain
syndrome related to his reflex sympathetic dystrophy (complex regional pain
syndrome). It is my feeling that the pain has a much more global effect on his
quality of life. In that regard, I would rate his permanent partial disability with
respect to the body as a whole at 30 percent.”
Appellant also submitted a September 25, 2008 report in which Dr. Joyce provided
examination findings.
By decision dated November 10, 2008, the Office denied appellant’s reconsideration
request, finding the evidence submitted repetitious and insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of the Federal Employees’ Compensation Act5 and section 10.404 of
the implementing federal regulations,6 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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., Guides7 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.8
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.9 Office procedures provide
that to support a schedule award, the file must contain competent medical evidence, which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
detail to include, where applicable, the loss in degrees of active and passive motion of the
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides, supra note 3.

8

See Joseph Lawrence, Jr., 53 ECAB 331 (2002).

9

Tammy L. Meehan, 53 ECAB 229 (2001).

4

affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent description of the impairment and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides.
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.10 Chapter 16 of the fifth edition of the A.M.A., Guides
provides the framework for assessing upper extremity impairments.11 Office procedures further
provide that after obtaining all necessary medical evidence, the file should be routed to the
Office medical adviser for an opinion concerning the nature and percentage of impairment and
the Office medical adviser should provide rationale for the percentage of impairment specified.12
ANALYSIS -- ISSUE 1
The Board finds that, at the time the Office issued the May 27, 2008 schedule award,
appellant had not met his burden of proof to establish that he was entitled to an impairment
rating for the left upper extremity greater than the 22 percent awarded. The accepted conditions
regarding the left upper extremity are: aggravation of acromioclavicular arthritis; impingement
syndrome; reflex sympathetic dystrophy; and complex regional pain syndrome. Further accepted
conditions are: right shoulder impingement syndrome; dysthymic disorder; and generalized
anxiety disorder. On August 3, 1998 appellant had already been granted a schedule award for 11
percent impairment of the right shoulder and on June 25, 1999, a schedule award for a 16 percent
impairment of the left upper extremity.
Regarding appellant’s general argument on appeal that his accepted conditions of
dysthymic disorder and generalized anxiety disorder should be considered in his impairment
rating, section 8107 of the Act identifies specific members of the body such as the arm, leg,
hand, foot, thumb and finger; functions such as loss of hearing and loss of vision; and organs to
include the eye.13 Section 8107(c)(22) provides for the payment of compensation for permanent
loss of any other important external or internal organ of the body as determined by the Secretary
of Labor who has made such a determination and pursuant to the authority granted in section
8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix
and vulva/vagina to the schedule.14 Disorders of the nervous system are not included as covered
10

Robert V. Disalvatore, 54 ECAB 351 (2003).

11

A.M.A., Guides, supra note 3 at 433-521.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(b-d) (August 2002).
13

5 U.S.C. § 8107(c).

14

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(a); see D.J., 59 ECAB ___ (Docket No. 08-725, issued
July 9, 2008).

5

members for purposes of a schedule award under the Act.15 Appellant would therefore not be
entitled to an increased schedule award for his accepted psychological conditions.
The medical evidence relevant to a left upper extremity impairment includes an
October 17, 2006 report, in which Dr. Ryan advised that appellant had a 20 percent left upper
extremity impairment, less than that awarded. In a May 3, 2007 report, Dr. Donohoe merely
stated that the requirements for a diagnosis of complex regional pain syndrome had been met in
accordance with the A.M.A., Guides. He provided no impairment analysis in which he
referenced specific sections, figures or tables of the A.M.A., Guides nor did he provide the
degree of permanent impairment. On October 25, 2007 Dr. Joyce advised that appellant had a
20 percent left upper extremity impairment due to significant loss of motion and decreased
strength and an additional 5 percent for complex regional pain syndrome, to total a 25 percent
left upper extremity impairment. However, he did not reference specific sections, figures or
tables of the A.M.A., Guides.
An opinion which is not based upon the standards adopted by the Office and approved by
the Board as appropriate for evaluating schedule losses is of little probative value in determining
the extent of a claimant’s impairment.16 Schedule awards are to be based on the A.M.A., Guides
and an estimate of permanent impairment is irrelevant and of diminished probative value where
it is not based on the A.M.A., Guides.17 The reports of Drs. Ryan, Donohoe and Joyce are
therefore insufficient to establish that appellant was entitled to a schedule award greater than the
22 percent awarded.
In reports dated February 13 and April 8, 2008, Dr. Varghese noted his review in
accordance with the fifth edition of the A.M.A., Guides and advised that, under Figures 16-40,
125 degrees of forward flexion yielded a four percent impairment and 50 degrees of extension
yielded zero percent impairment;18 that under Figure 16-43, 130 degrees of abduction yielded a
two percent impairment and 50 degrees of adduction yielded zero percent impairment;19 and that
under Figure 16-46, 60 degrees of internal rotation yielded a two percent impairment.20 He then
properly added these values to find an eight percent impairment for loss of left shoulder range of
motion. Dr. Varghese also properly utilized Tables 16-11 and 16-35 to find a three percent
impairment due to weakness of the serratus anterior muscle, a two percent impairment due to
abduction weakness and one percent impairments for internal and external rotation, to yield a
strength deficit of seven percent.21 He then rated appellant’s pain and sensory deficits under
Table 16-13, finding a four percent impairment at C5, a three percent impairment at C8 and a
15

F.M., 58 ECAB ____ (Docket No. 06-632, issued: May 3, 2007).

16

Carl J. Cleary, 57 ECAB 563 (2006).

17

James R. Hill, 57 ECAB 583 (2006).

18

A.M.A., Guides supra note 3 at 476.

19

Id at 477.

20

Id at 479.

21

Id. at 484, 510.

6

two percent impairment at T1, for a nine percent impairment for pain and sensory deficit.22
Dr. Varghese then properly utilized the Combined Values Chart,23 to conclude that appellant had
a 22 percent permanent impairment of the left upper extremity. In reports dated April 11 and
May 12, 2008, an Office medical adviser agreed with Dr. Varghese’s impairment findings. The
Office medical adviser noted that, as appellant had previously received a schedule award for a 16
percent permanent impairment of the left upper extremity, he was entitled to an additional
schedule award for a 6 percent impairment, which the Office granted on May 27, 2008.
As the reports of Dr. Varghese and the Office medical adviser provided the only
evaluations that, conformed with the A.M.A., Guides, they constitute the weight of the medical
evidence. Appellant therefore did not meet his burden of proof to establish that he is entitled to a
schedule award greater than those awarded.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.24 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).25 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (1) shows that the
Office erroneously applied or interpreted a specific point of law; (2) advances a relevant legal
argument not previously considered by the Office; or (3) constitutes relevant and pertinent new
evidence not previously considered by the Office.26 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.27
ANALYSIS -- ISSUE 2
The merit issue in this case is whether appellant met his burden of proof to establish that
he has more than a 22 percent impairment of the left upper extremity, for which he received
schedule awards. With his October 6, 2008 reconsideration request, appellant contended that the
schedule award was in error because it did not take into account the accepted conditions of
dysthymic disorder or generalized anxiety disorder. While the reopening of a case may be
predicated solely on a legal premise not previously considered, such reopening is not required
22

Id. at 489.

23

Id. at 604-06.

24

5 U.S.C. § 8128(a).

25

20 C.F.R. § 10.608(a).

26

Id. at § 10.608(b)(1) and (2).

27

Id. at § 10.608(b).

7

where the legal contention, as in this case, does not have a reasonable color of validity.28 As
stated above, disorders of the nervous system are not covered members for purposes of a
schedule award under the Act.29 Consequently, appellant was 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)(2).30
With respect to the third above-noted requirement under section 10.6069b)(2),
Dr. Hunter’s March 10, 2008 report was previously of record. Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.31 Appellant also submitted a September 25, 2008 report in which
Dr. Joyce provided examination findings. Dr. Joyce, however, provided no impairment analysis.
The Board has held that the submission of evidence which does not address the particular issue
involved in a case does not constitute a basis for reopening the claim.32 Appellant, however, also
submitted a June 23, 2008 report in which Dr. Donohoe advised that he felt that pain has a much
more global effect on quality of life and would rate appellant’s permanent partial disability with
respect to the body as a whole at 30 percent.
In order to require merit review, it is not necessary that the new evidence be sufficient to
discharge appellant’s burden of proof. Instead, the requirement pertaining to the submission of
evidence in support of reconsideration only specifies that the evidence be relevant and pertinent
and not previously considered by the Office.33 As the June 23, 2008 report from Dr. Donohoe
constituted new and relevant medical evidence, the Board finds that the Office improperly denied
appellant’s request for review of the merits of his claim and the case will be remanded to the
Office to conduct an appropriate merit review. Following this and such other development as
deemed necessary, the Office shall issue a merit decision on the schedule award claim.34
CONCLUSION
The Board finds that appellant did not establish that he was entitled to a schedule award
for his left upper extremity greater than the 22 percent awarded and that the Office improperly
28

M.E., 58 ECAB ____ (Docket No. 07-1189, issued September 20, 2007).

29

F.M., supra note 15.

30

20 C.F.R. § 10.606(b)(2).

31

D’Wayne Avila, 57 ECAB 642 (2006).

32

Id.

33

Billy B. Scoles, 57 ECAB 258 (2005).

34

On December 1, 2008 appellant requested reconsideration with the Office and on February 4, 2009 filed an
appeal with the Board of the May 27, 2008 Office decision. By decision dated February 27, 2009, the Office denied
modification of the May 27, 2008 decision. It and the Board may not have simultaneous jurisdiction over the same
issue in the same case. Following the docketing of an appeal with the Board, the Office does not retain jurisdiction
to render a further decision regarding the same issue on appeal until after the Board relinquishes its jurisdiction.
Any decision, such as that issued on February 27, 2009, rendered by the Office on the same issues for which an
appeal is filed is null and void. Jacqueline S. Harris, 54 ECAB 139 (2002).

8

refused to reopen his schedule award claim for further review of the merits pursuant to section
8128(a) of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 27, 2008 be affirmed. The decision dated November 10,
2008 is vacated and the case remanded to the Office for proceedings consistent with this decision
of the Board.
Issued: December 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Chattanooga, TN,
Employer
__________________________________________
Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-0443
Issued: September 11, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On December 17, 2014 appellant, through his attorney, filed a timely appeal of a
November 4, 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 to consider the merits of this case.
Appellant, then a 58-year-old heavy equipment operator, filed an occupational disease
claim on April 13, 2013 alleging an employment-related loss of hearing. In support of his claim,
he submitted a May 3, 2011 report from Dr. Linda Mumford, a Board-certified otolaryngologist,
who had been designated as a second opinion physician in a separate hearing loss claim, assigned
OWCP File No. xxxxxx612, in which OWCP had granted him a schedule award on June 7, 2011
for a 17 percent binaural sensorineural hearing loss.2 Appellant contended that he had developed
an additional hearing loss due to his employment duties after the issuance of his 2011 schedule
award. In a letter dated June 18, 2013, OWCP noted that appellant was claiming an additional
loss of hearing due to his work exposure and began further developing the claim.
1

5 U.S.C. § 8101 et seq.

2

The Board is unable to access claim number xxxxxx612.

On September 23, 2013 OWCP referred appellant and a statement of accepted facts for a
second opinion examination with Dr. Andrew S. Mickler, a Board-certified otolaryngologist. In
a supplemental report dated January 14, 2014, Dr. Mickler stated that appellant’s current
audiogram showed a bilateral sensorineural hearing loss. He added that the hearing loss did not
appear to be employment related because there was no noise notch in either ear, which would be
indicative of a noise-induced hearing loss. Dr. Mickler stated, “As far as the etiology of
[appellant’s] hearing loss, it is impossible to determine the exact cause as he would work for the
[F]ederal [G]overnment for a few months and then he would work in the private sector for a few
months.”
By decision dated January 22, 2014, OWCP denied appellant’s claim for hearing loss
finding that the weight of the medical evidence established that appellant’s loss of hearing was
not causally related to his exposures during his federal employment. Counsel requested an oral
hearing and, by decision dated November 4, 2014, an OWCP hearing representative affirmed the
denial of appellant’s claim, finding that there was no rationalized medical opinion evidence
supporting a causal relationship between appellant’s diagnosed hearing loss, and his
employment-related noise exposures.
The Board, having duly considered the matter, finds that this case is not in posture for a
decision. The Board concludes that to properly consider appellant’s current claim for
employment-related loss of hearing, appellant’s hearing loss claims should be doubled. OWCP’s
procedures provide that cases should be doubled when correct adjudication of the issues depends
on frequent cross-reference between files including a new injury claim for a similar condition or
the same part of the body.3 As OWCP has accepted binaural hearing loss under OWCP File No.
xxxxxx612 but has denied hearing loss in the instant case, for a full and fair adjudication of
appellant’s claims the files should be doubled.4 The Board will remand the case to OWCP for
doubling of OWCP File No. xxxxxx612 with the current file. Following any further
development of the medical evidence, OWCP shall issue a de novo decision as to whether
appellant sustained additional employment-related hearing impairment entitling him to a greater
schedule award.

3

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

R.A., Docket No. 14-1828 (issued February 25, 2015) (finding that OWCP should combine hearing loss claims
when appellant previously received a schedule award and the current second opinion physician found his hearing
loss was not employment related).

2

IT IS HEREBY ORDERED THAT the November 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: September 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, OGDEN
UTAH-OAMA, RANDOLPH AIR FORCE
BASE, TX, Employer
__________________________________________

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

Docket No. 15-155
Issued: March 12, 2015

Case Submitted on the Record

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

JURISDICTION
On October 31, 2014 appellant filed a timely appeal from an August 20, 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 the case.
ISSUE
The issue is whether appellant has established more than 12 percent binaural hearing loss
causally related to his federal employment, for which he received a schedule award.
On appeal appellant contends that the schedule award did not include his tinnitus rating.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 22, 2013 appellant, then a 56-year-old aircraft mechanic leader, filed an
occupational disease claim alleging that noise exposure at work caused bilateral hearing loss
with tinnitus. His work was in close proximity to the flight line and he worked in a high noise
mix facility which involved noise from pneumatic tools, hydraulic mules, and 60 air carts.
Appellant was first aware of his hearing loss and that it was caused or aggravated by his
employment on September 30, 1997. He submitted copies of his position description along with
his annual hearing tests from 1997 onwards, which showed a progression in hearing loss.
On March 14, 2014 OWCP referred appellant, along with a statement of accepted facts,
the medical record and a list of questions, to Dr. Stewart Barlow, Board-certified
otolaryngologist, for a second opinion examination. In an April 4, 2014 report, Dr. Barlow
stated that appellant’s workplace exposure was significant as to intensity and duration to have
caused the hearing loss in question. He diagnosed bilateral sensorineural high frequency hearing
loss and tinnitus and opined that this condition was due to noise exposure at appellant’s federal
employment. Dr. Barlow explained that there was progressive hearing loss on audiogram. He
found that appellant had tinnitus grade 4 and binaural hearing loss impairment 15.9 percent,
which included tinnitus impairment of 4 percent. Dr. Barlow recommended hearing aids for both
ears.
An April 4, 2014 audiogram performed on Dr. Barlow’s behalf by Robert L. Eppens, an
audiologist, reflected testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second (cps) and revealed the following decibel losses: 25, 30, 40, and 45 for the right ear and
25, 25, 40, and 40 for the left ear respectively. Based on these results and in accordance with the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th edition)
(A.M.A., Guides), Dr. Barlow determined that appellant had an 11.25 percent monaural loss of
the left ear and a 15.0 percent monaural loss of the right ear, which converted to an 11.9 percent
binaural hearing loss, plus an additional 4 percent impairment due to employment-related
tinnitus. He stated that appellant needed hearing aids to help improve his hearing and get relief
from his tinnitus. In an April 4, 2014 letter, Dr. Barlow stated that the tinnitus appellant
experienced made it difficult to concentrate and hard for him to hear, which made him feel
angry. He noted that sleeping was a problem due to the head noises and that appellant felt as
though he could not escape the ringing. Social activities were negatively affected, which led to
great frustration and made it difficult to enjoy life. Appellant felt the tinnitus interfered with
household responsibilities and negatively affected his relationships with family and friends.
Dr. Barlow opined that appellant’s tinnitus should be considered part of his hearing loss claim.
Copies of the April 4, 2014 audiograms were included.
In a May 19, 2014 decision, OWCP accepted appellant’s claim for bilateral hearing loss
and bilateral tinnitus.
On May 19, 2014 OWCP requested that its medical adviser review the medical evidence
of record and statement of accepted facts, for a schedule award impairment determination.
On June 10, 2014 appellant filed a Form CA-7 claim for a schedule award based on his
bilateral hearing loss and bilateral tinnitus.

2

In an August 14, 2014 report, an OWCP medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine, reviewed Dr. Barlow’s report and April 4, 2014 audiometric
test results. Based on Dr. Barlow’s audiometric findings, the medical adviser found that
appellant had 11.25 percent monaural hearing in the left ear and 13.13 percent monaural hearing
in the right ear.2 The medical adviser calculated that appellant’s award would be greater for a
binaural award, rather than monaural awards and concluded that appellant had 11.6 percent
sensorineural binaural hearing loss. He stated that appellant was entitled to an additional award
for tinnitus; therefore, the final hearing loss rating was equal to 11.6 percent binaural hearing
loss, plus 4 percent impairment for tinnitus, for a 15.6 percent binaural impairment. The medical
adviser determined that the date of maximum medical improvement was April 4, 2014, the date
of Dr. Barlow’s examination, and authorized hearing aids.
By decision dated August 20, 2014, OWCP granted appellant a schedule award for 12
percent binaural hearing loss. The award covered the period from April 4 through September 18,
2014, for a total of 24 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
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 cps, the losses at each
frequency are added and averaged.7 The fence of 25 decibels is then deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.8 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is determined by
2

The medical adviser reported testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed the
following decibel losses: 25, 30, 40, and 45 for the right ear and 25, 25, 40, and 40 for the left ear respectively.
OWCP medical adviser incorrectly noted that at the frequency level of 1,000 cps, appellant had 25 as opposed to 30
monaural hearing loss of right ear.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

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

8

Id.

9

Id.

3

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.10 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.11
ANALYSIS
OWCP accepted that appellant sustained bilateral hearing loss and bilateral tinnitus due
to noise. It developed the claim by referring appellant to Dr. Barlow. On April 4, 2014
Dr. Barlow examined appellant and an audiogram was obtained on the referral physician’s
behalf. He found, using OWCP’s standard procedures, that appellant’s noise exposure in his
federal employment was sufficient to cause binaural hearing loss and bilateral tinnitus. The
April 4, 2014 audiogram tested decibel losses at 500, 1,000, 2,000, and 3,000 cps and recorded
decibel losses of 25, 30, 40, and 45 respectively in the right ear. The total decibel loss in the
right ear is 140. When divided by 4, the result is an average hearing loss of 35 decibels. The
average of 35 decibels, reduced by 25 decibels (the first 25 decibels were discounted as
discussed above), equals 10 decibels, which when multiplied by the established factor of 1.5
computes 15 percent hearing loss in the right ear.12
OWCP medical adviser properly determined that appellant was entitled to greater amount
of compensation if the award was for binaural, rather than monaural hearing loss.13 The
audiogram tested decibel losses for the left ear at 500, 1,000, 2,000, and 3,000 cps and recorded
decibel losses of 25, 25, 40, and 40 respectively. The total decibel loss in the left ear is 130.
When divided by 4, the result is an average hearing loss of 32.5 decibels. The average hearing
loss of 32.5 is reduced by the fence of 25 decibels to 7.5, which when multiplied by the
established factor of 1.5 computes 11.25 percent hearing loss in the left ear. To determine the
binaural loss, the lessor loss of 11.25 percent is multiplied by 5, to yield 56.25, and is then added
to the greater loss of 15 percent. The total for this loss is then 71.25, which is divided by 6 to

10

Id. at 251.

11

Horace L. Fuller, 53 ECAB 775 (2002).

12

While OWCP medical adviser incorrectly used a value of 25 for the 1,000 frequency for the right ear as
opposed to a value of 30, this amounts to harmless error as the hearing impairment calculation still rounds up to the
binaural loss of 12.0 percent, which appellant received.
13

It is well established that, if calculations based on the monaural loss for each ear would result in greater
compensation than calculations for binaural loss, then the monaural hearing loss calculations should be used. See
Reynaldo R. Lichtenberger, 52 ECAB 462 (2001). In this case, appellant’s compensation is greater under the
procedures used for calculating binaural loss. The maximum number of weeks of compensation for binaural hearing
loss is 200 weeks. See 5 U.S.C. § 8107(c)(13)(B). Appellant’s monaural hearing loss of the left ear is 11 percent,
whereas his monaural hearing loss of the right ear is 15 percent. The maximum number of weeks of compensation
for monaural hearing loss is 52 weeks. See 5 U.S.C. § 8107(c)(13)(A). Eleven percent of 52 weeks equals 5.72
weeks of compensation, and fifteen percent of 52 weeks equals 7.8 weeks. The 12 percent binaural hearing loss
award of 14 weeks of compensation is therefore the greater award.

4

equal the binaural loss of 11.875 percent, which is rounded up to equal the binaural loss of 12.0
percent, which appellant received.14
The Board has recognized that the A.M.A., Guides allow for up to an additional five
percent impairment for tinnitus. Specifically, the A.M.A., Guides provide that if the 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.15
OWCP has accepted that appellant sustained tinnitus and the medical adviser noted and
agreed with Dr. Barlow’s finding of an additional four percent bilateral hearing loss due to
tinnitus. Both Dr. Barlow and OWCP medical adviser found that the tinnitus impacted
appellant’s ability to perform activities of daily living and provided an additional four percent
impairment due to tinnitus. Thus, the impairment rating for an additional four percent
impairment for tinnitus is substantiated in this case and the impairment award must take into
account the tinnitus rating.
As appellant is entitled to a schedule award for 16 percent binaural hearing loss, but only
received a schedule award for 12 percent binaural hearing loss, he is entitled to an additional 4
percent impairment award. Accordingly, the August 20, 2014 decision shall be modified to
reflect appellant’s entitlement to a schedule award for 16 percent binaural hearing loss.
CONCLUSION
The Board finds that appellant has established that he sustained hearing loss greater than
12 percent. The record substantiates that he has 16 percent binaural hearing loss and an
additional award for hearing loss due to tinnitus is therefore awarded on this appeal.

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4b(2)(b)
(January 2010). See also R.C., Docket No. 14-502 (issued July 2, 2014). OWCP procedures provide that, in
computing hearing loss, percentages should not be rounded until the final percent for award purposes is obtained and
fractions should be rounded up from .50.
15

A.M.A., Guides 249 (6th ed. 2008) Section 11.2b, Tinnitus.
(November 13, 2014).

5

See L.N., Docket No. 14-1168

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 12, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0337
Issued: February 19, 2020

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 30, 2018 appellant filed a timely appeal from an October 26, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 19-0337.2
By notice dated September 24, 2018, OWCP made a preliminary determination that an
overpayment of $5,269.14 was created for the period from February 1 through September 15, 2018
because appellant was paid compensation under the Federal Employees’ Compensation Act3
(FECA) and the Social Security Administration (SSA) without an appropriate offset creating a
prohibited dual benefit. It found that appellant was without fault in the creation of the overpayment
for the period from February 1 to 3, 2018, but that she was at fault in the creation of the
1

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
2

Appellant also filed a timely request for oral argument in this case. By order dated September 5, 2019, the Board
denied appellant’s request for oral argument as oral argument would further delay issuance of a Board decision and
not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 19-0337 (issued
September 5, 2019).
3

5 U.S.C. § 8101 et seq.

overpayment for the period February 4 through September 15, 2018. It informed her of her review
rights and instructed her to complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting documentation within 30 days. The preliminary determination
was sent to appellant’s address of record.
Although properly addressed, based on the information provided by appellant, the U.S.
Postal Service returned OWCP’s September 24, 2018 preliminary determination as undeliverable
and unable to forward. OWCP received the returned mail on October 9, 2018.
By decision dated October 26, 2018, OWCP finalized its preliminary determination finding
that an overpayment of $5,269.14 was created for the period February 1 through September 15,
2018 because appellant was paid dual compensation under FECA and SSA without an appropriate
offset.4
OWCP’s procedures require that it provide written notice informing the claimant of the
fact and amount of an overpayment before seeking recovery or adjusting benefits.5 It must
additionally advise the claimant of whether she is at fault in the creation of the overpayment,6 her
right to challenge the fact or amount of the overpayment, her right to contest the preliminary
finding of fault in the creation of the overpayment and, if applicable, her right to request a waiver
of recovery of the overpayment.7
The mailbox rule provides that proper and timely mailing of a document in the ordinary
course of business raises a rebuttable presumption of receipt by the addressee.8 As a rebuttable
presumption, receipt will not be presumed, however, when there is evidence of nondelivery, and
the presumption may also be rebutted by other evidence that supports that the addressee did not
receive the correspondence.9
The record in this case contains direct evidence of nondelivery of the September 24, 2018
preliminary determination.10 Although properly addressed to appellant’s last known address, the
U.S. Postal Service returned the notice to OWCP as undeliverable and unable to forward. OWCP
received the returned, nondelivered preliminary overpayment determination on October 9, 2018.
Despite receiving the notice as undeliverable, it made no further attempt to reissue the preliminary
4
OWCP overturned, in part, its preliminary finding on fault, finding that appellant was without fault in the creation
of the overpayment for the entire period of the overpayment. However, it denied waiver of recovery of the
overpayment because she had not responded to the overpayment recovery questionnaire or provided supporting
financial documentation. OWCP directed recovery of the overpayment by deducting $170.00 every 28 days from
appellant’s continuing compensation payments.
5
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.300.5
(September 2018); 20 C.F.R. § 10.431(a).
6

Id. at § 10.431(b).

7

Id. at § 10.431(d).

8
L.C., Docket No. 19-0320 (issued July 26, 2019); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Kenneth E. Harris, 54 ECAB 502, 505 (2003).
9

Id.

10

J.B., Docket No. 17-1164 (issued September 11, 2017).

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determination prior to issuing its October 26, 2018 decision. The Board finds that the returned
envelope constitutes evidence of nondelivery sufficient to overcome the presumption of receipt.11
Because appellant had not received the September 24, 2018 preliminary determination, she was
not afforded an opportunity to challenge the fact and amount of overpayment and to request a
waiver of recovery of the overpayment.12
As OWCP has not complied with the procedural rights afforded to appellant under its
regulations, the Board finds that it improperly issued its final overpayment decision without proper
notice.13 Accordingly,
IT IS HEREBY ORDERED THAT the October 26, 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: February 19, 2020
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

11

V,R., Docket No. 18-1117 (issued June 20, 2019); M.U., Docket No. 09-0526 (issued September 14, 2009).

12

V.R., id.

13

Id.; L.G., Docket No. 17-0004 (issued April 17, 2017).

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