United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE NAVY,
Beaufort, SC, Employer
__________________________________________

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Appearances:
Lester L. Bates, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2060
Issued: January 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 8, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 13, 2006 which denied his claim for a
traumatic injury. Pursuant to 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 met his burden of proof in establishing that he sustained a
ruptured disc while in the performance of duty.
FACTUAL HISTORY
On June 5, 2000 appellant, then a 53-year-old material handler, filed a traumatic injury
claim alleging that on November 10, 1999 he was moving a computer into his truck and felt pain
in his back. His supervisor, Vaughn Hill, noted on the CA-1 form that he had no knowledge
about the facts of appellant’s injury. Mr. Hill indicated that appellant failed to report the injury
for eight months after it allegedly occurred.

In support of his claim, appellant submitted treatment notes from Dr. Hugh O. Pearson, a
family practitioner, dated November 17 and 29, 1999. Dr. Pearson indicated that appellant was
treated and would be out of work for one week. In a February 1, 2000 work excuse slip,
Dr. Thor Robert Rhodin, a Board-certified internist, advised that appellant would be off work
from December 1, 1999 to February 22, 2000 due to back and leg pain. Appellant also came
under the treatment of Dr. Randolph C. Bishop, Board-certified in physical medicine and
rehabilitation. Dr. Bishop noted in reports dated May 1 and 31, 2000, that appellant was under
his care from February 22 to June 1, 2000 and would be off work until June 14, 2000.
Mr. Hill submitted a statement dated June 6, 2000 and indicated that appellant mentioned
that he aggravated his back in November 1999, but did not believe the injury was serious. He
advised that on November 17, 1999 appellant was moving furniture to another facility and he
noticed that appellant was wearing a back support belt. Appellant indicated that his back was
bothering him and that he was going to seek medical treatment. Mr. Hill advised that appellant’s
job required him to move property and he could not definitively state whether his current back
injury was work related, but indicated that it was possibly related to moving computers on
November 17, 1999 or to the many other times that appellant had moved property.
In a letter dated June 26, 2000, the Office advised appellant of the factual evidence
needed to establish his claim and requested that he submit such evidence.
Appellant submitted statements dated July 18 and July 19, 2000, indicating that he
reported his back injury to his supervisor on the same day that it occurred. He noted that
Mr. Hill inquired as to whether he was wearing his back belt and appellant responded
affirmatively. Appellant delayed in seeking medical attention because he believed it was just a
pulled muscle and would resolve. The pain become worse and his symptoms persisted and he
sought medical treatment from Dr. Pearson on November 17, 1999. In a November 29, 1999
report, Dr. Pearson noted that appellant continued to experience pain and developed paresthesias
extending into the right thigh and knee with urge incontinence. In reports dated December 13,
1999 and January 25, 2000, he noted that appellant complained of paresthesias. In a
December 3, 1999 report, Dr. Rhodin noted that appellant had an onset of back pain one to two
weeks ago which caused numbness and weakness in his legs. He indicated that his work duties
included lifting property. Dr. Rhodin diagnosed low back pain with findings in the lower
extremities consistent with myelopathy. In reports dated December 9 and 15, 1999, he noted that
appellant’s pain was improved but he still experienced abnormal sensation and numbness in his
legs. Dr. Rhodin diagnosed low back pain with abnormal findings in the lower extremity
secondary to a ruptured disc or sprain. Reports dated January 11 to April 18 2000, noted
improvement in appellant’s back pain but an abnormal sensation in the saddle distribution of his
buttocks and peroneal area. Dr. Rhodin diagnosed improving low back pain with abnormal
sensation in the saddle distribution.
Dr. Robb Snider, a Board-certified neurologist and psychiatrist, treated appellant for
bilateral lower extremity paresthesias. Appellant reported awakening in mid November 1999
with right lower extremity numb paresthesias and back pain which progressed into the lower
extremities, buttocks and perineum. Dr. Snider diagnosed progressive bilateral lower extremity
paresthesias which was most pronounced over the saddle distribution with accompanying urinary
urgency, constipation and sexual dysfunction. From February 8 to April 13, 2000, Dr. Rhodin

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noted that appellant underwent a T7-8 discectomy; however, appellant still experienced
persistent sensory disturbances from his waist down. He diagnosed thoracic myelopathy and
status post T7-8 discectomy and bilateral tardy ulnar palsies and early right carpal tunnel
syndrome. A magnetic resonance imaging (MRI) scan of the thoracic spine dated February 3,
2000 revealed an extruded disc fragment to the left at T7-8.
Appellant was seen in consultation with Dr. Stephen M. Scionti, a Board-certified
urologist, on February 4, 2000. Dr. Scionti noted that appellant experienced back pain which
commenced eight to nine months ago with intermittent paresthesias, numbness and altered
sensation down both legs. He diagnosed spinal nerve root irritation causing bladder irritative
symptoms such as urgency and paresthesias in the saddle region. In treatment notes from
Dr. Bishop dated February 9, 2000, it was noted that appellant was a material handler who was
injured at work on November 17, 1999 and experienced pain radiating from his thoracic region
into his flank and lower extremities causing bowel and bladder dysfunction. Dr. Bishop
diagnosed progressive thoracic myelopathy and recommended transthoracic discectomy. In an
operative report dated February 22, 2000, Dr. Bishop performed a transthoracic exposure of T7-8
vertebral bodies, discectomy at T7-8, allograft fusion, T7-8 and internal fixation at T7-8 and
diagnosed T7-8 herniated disc.
In a decision dated July 28, 2000, the Office denied appellant’s claim finding that the
evidence was not sufficient to establish that his back condition was related to the accepted
incident of November 10, 1999.
On August 16, 2000 appellant requested an oral hearing before an Office hearing
representative. The hearing was held on December 22, 2000. Appellant testified that in
November 1999 he sustained a work-related back injury when lifting a computer. He
immediately reported the injury to his supervisor. Appellant indicated that he delayed in seeking
medical attention because he believed his condition was just a pulled muscle which would
resolve. In an attending physician’s report dated February 8, 2000, Dr. Bishop noted that on
November 17, 1999 appellant sustained a thoracic disc herniation with radiculopathy. He noted
with a checkmark “yes” that his condition was caused or aggravated by an employment activity.
By decision dated April 20, 2001, the hearing representative affirmed the July 28, 2000
decision finding that appellant failed to establish that he sustained an injury on
November 10, 1999.
On June 21, 2001 appellant, through his attorney, appealed the claim to the Board.
Appellant submitted a report from Dr. Bishop dated February 2, 2001. Dr. Bishop noted that
appellant injured his back on November 17, 1999 while lifting equipment or computers when his
symptoms began. He opined that he sustained a herniated disc at T7-8 secondary to his lifting
injury at his job site in November 1999. On October 22, 2002 the director of the Office
requested that the Board set aside the decision of the hearing representative and remand the case
for further development. By order dated November 1, 2002, the Board granted the Director’s
motion.1 It noted that appellant submitted additional medical evidence prior to the issuance of
1

Docket No. 0-1780 (issued November 1, 2002).

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the hearing representatives decision which should be considered by the Office prior to issuing a
decision.
In a decision dated December 31, 2002, the Office denied appellant’s claim as the
evidence was not sufficient to establish that he sustained the alleged injury on
November 10, 1999. It determined that the decision dated December 31, 2002 had not been
properly issued because appellant’s authorized representative was not sent a copy and, therefore,
the decision was reissued on December 8, 2004.
On December 5, 2005 appellant, through his attorney, requested reconsideration.
Appellant asserted that Dr. Bishop’s report of February 2, 2001 established that he sustained a
work-related lifting injury to his back. He submitted an MRI scan of the lumbar spine dated
December 1, 1999 which revealed broad diffuse disc bulging at L2-3, L3-4 and L4-5, annular
tears at L2-3 and L3-4 and a broad central subligamentous disc protrusion noted at L5-S1.
By decision dated June 13, 2006, the Office denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

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be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
The Office denied appellant’s claim on the grounds that he failed to establish that he
sustained injury on November 10, 1999. The Board finds that the evidence supports that on or
about November 10, 1999 appellant did in fact lift property in his employment. Appellant has
provided a consistent history of the injury as reported on medical reports and in his testimony.
He submitted a report from Dr. Bishop dated February 9, 2000, who noted a history of injury and
indicated that appellant was a material handler who was injured at work on November 17, 1999
and experienced pain radiating from his thoracic region into his flank and lower extremities
causing bowel and bladder dysfunction. Other reports from Dr. Bishop dated February 2, 2001
noted that appellant injured his back on November 17, 1999 when he was lifting equipment and
computers. He indicated that appellant sustained a herniated nucleus pulposus at T7-8 while
moving heavy objects at work. Additionally, Mr. Hill, appellant’s supervisor, noted on June 6,
2000 that appellant mentioned that he aggravated his back in November 1999 but the injury did
not appear too serious. He indicated that appellant was required to move property and that on
November 10, 1999 he was moving furniture to another facility. Mr. Hill indicated that on
November 17, 1999 he noticed that appellant was wearing his back support belt. Appellant
indicated that his back was bothering him and that he was going to seek medical treatment. His
testimony at the oral hearing on December 22, 2000 further supports his history of injury noting
that in November 1999 he experienced back pain after lifting equipment. Appellant indicated
that he delayed in seeking medical attention because he believed it was just a pulled muscle and
his condition would resolve.
He sought medical treatment from Dr. Pearson on
November 17, 1999. The Board finds that appellant’s statements are consistent with the
surrounding facts and circumstances and thus, has established that he experienced the
employment incident on November 10, 1999.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained a ruptured disc on November 10, 1999 causally related to his employment
duties. Appellant submitted notes from Dr. Pearson dated November 17 and 29, 1999, who
indicated that he was treated and advised to remain at home for three to five days. Dr. Pearson
noted that appellant developed paresthesias extending into the right thigh and knee with urge
incontinence. Other reports dated December 13, 1999 and January 25, 2000 noted appellant’s
complaints of paresthesias. However, Dr. Pearson failed to provide a history of injury,7 nor did
5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

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he provide a rationalized opinion regarding the causal relationship between appellant’s
paresthesias and ruptured disc and the factors of employment believed to have caused or
contributed to such condition.8
The December 3 to 28, 1999 reports from Dr. Rhodin noted that appellant did lifting at
work and had an onset of back pain one to two weeks prior which caused numbness and
weakness in his legs. Dr. Rhodin diagnosed low back pain with findings in the lower extremities
consistent with myelopathy. In reports dated January 11 to April 18, 2000, he noted that
appellant continued to experience abnormal sensation in the saddle distribution of his buttocks
and peroneal area and diagnosed status post thoracic spine disc herniation with generalized
abnormality of sensation in the lower extremities. However, none of Dr. Rhodin’s reports
specifically addressed the November 10, 1999 incident, nor did he provide a rationalized opinion
regarding the causal relationship between appellant’s thoracic spine disc herniation or
myelopathy and the factors of employment believed to have caused or contributed to such
condition.9 Therefore, these reports are insufficient to meet appellant’s burden of proof.
Appellant submitted a report from Dr. Bishop dated February 9, 2000. He noted that
appellant was a material handler and was injured at work on November 17, 1999 and
experienced pain radiating from his thoracic region into his flank and lower extremities. In a
report dated February 2, 2001, Dr. Bishop opined that appellant sustained a herniated thoracic
disc at T7-8 secondary to his lifting injury at his job site in November 1999. Although
Dr. Bishop generally supported causal relationship, he did not provide medical rationale
explaining the basis of his stated conclusion regarding the causal relationship between
appellant’s T7-8 herniated nucleus pulposus condition and the factors of employment.10
Dr. Bishop did not explain the process by which lifting would cause the diagnosed condition and
why such condition would not be due to any nonwork factors. Appellant submitted an attending
physician’s report prepared by Dr. Bishop dated February 8, 2000. Dr. Bishop noted that on
November 17, 1999 appellant sustained a thoracic disc herniation with radiculopathy. He noted
with a checkmark “yes” that appellant’s condition was caused or aggravated by an employment
activity. The Board has held that an opinion on causal relationship which consists only of a
physician checking “yes” to a medical form report question on whether the claimant’s condition
was related to the history given is of little probative value. Without any explanation or rationale
for the conclusion reached, such report is insufficient to establish causal relationship.11
Therefore, this report is insufficient to meet appellant’s burden of proof.
Other reports from Dr. Snider and Dr. Scionti, noted treating appellant for bilateral lower
extremity paresthesias and back pain and diagnosed thoracic myelopathy and status post T7-8
discectomy, bilateral tardy ulnar palsies, early right carpal tunnel syndrome and spinal nerve root
irritation. However, neither Dr. Snider nor Dr. Scionti provided a history of injury, nor did they
8

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

Id.

10

See Jimmie H. Duckett, supra note 8.

11

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

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provide a rationalized opinion regarding the causal relationship between appellant’s thoracic
myelopathy, bilateral tardy ulnar palsies, early right carpal tunnel syndrome and spinal nerve
root irritation and ruptured disc and the factors of employment believed to have caused or
contributed to such conditions.12
The remainder of the medical evidence failed to provide an opinion on the causal
relationship between appellant’s job and his diagnosed bilateral lower extremity paresthesias,
back pain, thoracic myelopathy and T7-8 discectomy conditions. For this reason, this evidence
is not sufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.13
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a ruptured disc at T7-8 condition causally related to his November 10, 1999
employment incident.14

12

See Jimmie H. Duckett, supra note 8.

13

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

14

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the June 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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Appearances:
Glenda Turner, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0206
Issued: September 23, 2020

Case Submitted on the Record

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

JURISDICTION
On November 4, 2019 appellant, through her representative, filed a timely appeal from an
August 23, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 26
percent binaural hearing loss, for which she previously received a schedule award.
FACTUAL HISTORY
On April 19, 2018 appellant, then a 71-year-old pneumatic systems mechanic, filed an
occupational disease claim (Form CA-2) alleging that she developed binaural hearing loss with
tinnitus due to factors of her federal employment, including working in a helicopter repair facility
and being exposed to loud noise in excess of 120 decibels (dBs). She noted that she first became
aware of her hearing loss and first realized that it was caused or aggravated by her federal
employment on May 17, 2017. On the reverse side of the claim form, the employing establishment
indicated that appellant had retired on December 29, 2017.
In a report dated May 17, 2017, Dr. Claude A. McLelland, a Board-certified
otolaryngologist, noted that appellant was seen for follow up regarding her sensorineural hearing
loss and chronic otitis externa, with dermatitis of the meatus, concha and external tragus of the
right ear. He related that an audiogram had been performed that day which revealed a bilateral
mild-to-moderate high frequency hearing loss, and which indicated that she would be an ideal
candidate for hearing aids. An audiogram report dated May 17, 2017 was attached.
On May 22, 2018 OWCP referred appellant to Dr. Paul Loeffler, a Board-certified
otolaryngologist, for a second opinion evaluation. In a July 10, 2018 report, Dr. Loeffler, noted
her history of injury and medical treatment. At his request a July 10, 2018 audiogram was
performed which reflected that at the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz),
right ear dB losses of 35, 35, 40, and 50, and left ear dB losses of 35, 35, 45, and 50, respectively.
Dr. Loeffler noted appellant’s examination findings and diagnosed binaural hearing loss and
tinnitus. He noted that her tinnitus occurred as background noise in the day and woke her at night.
Dr. Loeffler opined that appellant’s conditions were due to her federal employment. He applied
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides)3 and calculated a ratable impairment in hearing in both ears.
Dr. Loeffler found 23 percent permanent impairment due to binaural hearing loss and an additional
3 percent permanent impairment for moderate tinnitus in both ears. He indicated that maximum
medical improvement (MMI) was reached as of the date of his examination.
On July 19, 2018 OWCP accepted the claim for binaural hearing loss. It noted that the
medical evidence established that appellant would benefit from hearing aids.
On July 19, 2018 OWCP forwarded Dr. Loeffler’s report to Dr. Jeffrey Israel, a Boardcertified otolaryngologist serving as a district medical adviser (DMA), for an opinion as to whether
an impairment rating was appropriate, and whether appellant had reached MMI.
In a July 20, 2018 response, the DMA opined that appellant suffered binaural hearing loss
due to federal noise exposure. He utilized the July 10, 2018 audiogram to determine the degree of
3

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

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hearing loss. The DMA determined that appellant had a right monaural loss of 22.5 percent, a left
monaural loss of 24.375 percent, and a binaural loss of 22.8 percent. Regarding tinnitus, he found
an additional 3 percent impairment, which resulted in a total impairment 25.8 percent for binaural
hearing loss. The DMA concurred with Dr. Loeffler’s recommendation for hearing aids. He
determined that appellant reached MMI on December 10, 2018 the date of the most recent
audiogram examination.
On July 25, 2018 appellant filed a claim for a schedule award (Form CA-7).
By decision dated February 20, 2019, OWCP granted appellant a schedule award for 26
percent binaural hearing loss.4 The period of the award ran for 26 weeks for the period July 10,
2018 through July 8, 2019.
On March 6, 2019 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review, which was held on July 9, 2019. Appellant’s representative argued that
additional impairment for the tinnitus should have been awarded based on the severity of
symptoms.
In a July 9, 2019 report, Dr. Loeffler noted that appellant’s audiogram of even date was
unchanged from the initial study. He provided a copy of a July 9, 2019 audiogram and explained
that the only treatment for tinnitus was masking.
By decision dated August 23, 2019, an OWCP hearing representative affirmed the
February 20, 2019 OWCP decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.7 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides.8

4

The amount of impairment was noted as 25.8 percent and was rounded up to 26 percent.

5

Supra note 2.

6

20 C.F.R. § 10.404.

7

Id.; T.O., Docket No. 18-0659 (issued August 8, 2019); Jacqueline S. Harris, 54 ECAB 139 (2002).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

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For hearing loss claims the Board requires that the employee undergo both audiometric and
otologic examination, that the audiometric testing precede the otologic examination, and that the
audiometric testing be performed by an appropriately certified audiologist. The Board has
explained that all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the American Speech and Hearing Association. The
audiometric test results must include both bone conduction and pure tone air conduction
thresholds, speech reception thresholds and monaural discrimination scores, and the
otolaryngologist’s report must include: date and hour of examination, date and hour of employee’s
last exposure to loud noise, and a statement of the reliability of the tests.9
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.10 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.11 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.12 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by
five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.13 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.14
The A.M.A., Guides provides that if tinnitus interferes with activities of daily living,
including sleep, reading (and other tasks requiring concentration), enjoyment of quiet recreation,
and emotional well-being, up to five percent may be added to a measurable binaural hearing
impairment.15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.16

9

W.G., Docket No. 17-1090 (issued March 12, 2018).

10

T.O., supra note 7; R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R.
§ 10.404.
11

A.M.A., Guides 250 (6th ed. 2009).

12

Id.

13

Id.

14

T.O., supra note 7; E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

15

A.M.A., Guides 249.

16

See supra note 8 at Chapter 2.808.6(f).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 26
percent binaural hearing loss, for which she previously received a schedule award.
Initially, OWCP received a report from Dr. McLelland dated May 17, 2017.
Dr. McLelland diagnosed mild-to-moderate sensorineural hearing loss and submitted an
audiogram dated May 17, 2017. However, he did not provide a rating of appellant’s hearing loss.
Therefore, Dr. McLelland’s report is insufficient to establish her hearing loss claim.
OWCP thereafter properly referred appellant to Dr. Loeffler for a second opinion
examination.17 Dr. Loeffler’s July 10, 2018 second opinion report set forth her audiogram findings
and opined that her binaural hearing loss was due to her workplace noise exposure. He determined
that appellant had 23 percent binaural hearing loss and an additional 3 percent for moderate tinnitus
in both ears for a total impairment of 26 percent.
On July 20, 2018 the DMA reviewed Dr. Loeffler’s report and the July 10, 2018 audiogram
and indicated that testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB
losses of 35, 35, 40, and 50 for the right ear and dB losses of 35, 35, 45, and 50 for the left ear,
respectively. Following the rating protocols, the DMA calculated a total impairment of 25.8
percent which was then rounded up to 26 percent binaural hearing impairment.18 The Board finds
that he properly evaluated appellant’s binaural hearing loss.
Appellant’s representative argued that additional impairment for the tinnitus should have
been awarded based on the severity of the symptoms. Dr. Loeffler found a tinnitus impairment
rating of three percent, which corresponded with the description of a moderate impairment, where
the tinnitus may be noticed even in the presence of background noise, although daily activities can
still be performed. The DMA reviewed Dr. Loeffler’s findings and concurred with his rating of
three percent for tinnitus. There is no evidence of record establishing a higher level of permanent
impairment for tinnitus.
The Board therefore finds that appellant has not met his burden of proof to establish that
she has more than 26 percent binaural hearing loss, for which she received a schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment.

17

See E.E., Docket No. 19-1763 (issued March 24, 2020); J.G., Docket No. 12-1469 (issued January 11, 2013).

18

The policy of OWCP is to round the calculated percentage of impairment to the nearest whole number. Results
should be rounded down for figures less than 0.5 and up for 0.5 and over. See R.M., Docket No. 18-0752 (issued
December 6, 2019); V.M., Docket No. 18-1800 (issued April 23, 2019); J.H., Docket No. 08-24329; Robert E.
Cullison, 55 ECAB 570 (2004). See also supra note 8 at Chapter 3.700.3(b) (January 2010).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 26
percent binaural hearing loss, for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, SOUTH HILLS POST
OFFICE, Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1588
Issued: June 16, 2021

Case Submitted on the Record

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

JURISDICTION
On September 3, 2020 appellant, through counsel, filed a timely appeal from June 1 and 2,
2020 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his
entitlement to compensation for the period January 18, 2016 through April 18, 2017 as he
1

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

5 U.S.C. § 8101 et seq.

knowingly failed to report his employment activities and earnings, pursuant to 5 U.S.C.
§ 8106(b)(2); (2) whether it properly found that appellant received an overpayment of
compensation in the amount of $38,178.96; and (3) whether OWCP properly determined that
appellant was at fault in the creation of the overpayment, thereby precluding waiver of recovery
of the overpayment.
FACTUAL HISTORY
On January 29, 2008 appellant, then a 46-year-old driver, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his head when he fell on ice while in the
performance of duty. OWCP accepted the claim for head contusion, with less than one hour loss
of consciousness, and neck sprain and strain. Appellant stopped work on January 29, 2008 and
was paid compensation on the supplemental rolls beginning March 25, 2008 and on the periodic
rolls beginning February 12, 2012.
On April 18, 2017 appellant signed a Form EN1032 regarding his earnings and
employment activity for the preceding 15-month period. The form advised that he must report all
employment for which he received a salary, wages, income, sales commissions, piecework, or any
payment of any kind, and that he must also report self-employment or involvement in any business
enterprise in the past 15 months. It further informed appellant that fraudulently concealing or
failing to report income could subject him to criminal prosecution. On the form he marked “No”
in response to questions regarding whether he worked for an employer, or was self-employed or
involved in a business enterprise during the previous 15-month period.3
In an August 23, 2019 report, by an employing establishment Office of the Inspector
General (OIG) agent, J.M., summarized his interview with appellant on March 12, 2019.
Appellant reported working an average of 20 to 30 hours a week at an automotive repair shop since
at least 2016. He indicated that he did not get paid by the automotive repair shop, but worked on
a trade or “barter system.” Appellant reported that he worked on customers’ vehicles so he could
work on his own vehicles. He stated that the owner of the automotive repair shop, W.Z., bought
him parts and lunch in exchange for helping fix customers’ cars. The agent showed appellant a
copy of OWCP’s Form EN1032 signed by him on April 18, 2017. Appellant acknowledged
working at the automotive repair shop during this time under a barter arrangement with W.Z.
However, he answered “No” to working for any employer during the prior 15 months, “No” to
being self-employed and “Yes” that he was unemployed for all periods during the past 15 months.
In response to Part B -- Volunteer work, “During the past 15 months, did you perform any
volunteer work including volunteer work for which ANY FORM of monetary or in-kind
compensation was received?” he answered “No.” The agent further inquired regarding a transcript
from an OWCP March 7, 2018 hearing in which appellant was asked “[h]ave you worked
3

On August 8, 2017 OWCP issued a notice proposing to terminate appellant’s wage-loss compensation and medical
benefits as he no longer had disability or residuals causally related to his accepted head contusion, loss of
consciousness, and neck sprain and strain. It allowed appellant 30 days to respond to the proposal. By decision dated
September 8, 2017, OWCP terminated appellant’s wage-loss compensation and medical benefits, effective
September 17, 2017. By de novo decision dated October 23, 2018, OWCP affirmed the September 8, 2017
termination decision. By decision dated May 29, 2019, it affirmed the October 23, 2018 decision, finding that the
September 8, 2017 termination “remains intact.”

2

anywhere since 2008 no [sic] at the Post Office, any other employment?” and he responded “No.
Sir.” When asked why he did not disclose the bartering arrangement with the automotive repair
shop, appellant did not offer any additional details.
On March 12, 2019 the employing establishment OIG interviewed the owner of the
automotive repair shop, W.Z., who stated that appellant worked at the automotive repair shop
approximately 15 to 20 hours a week. W.Z. indicated that appellant was not employed by the
automotive repair shop, but he paid him in favors. He confirmed that he paid appellant in vehicle
parts and bought him lunch in exchange for appellant fixing customer cars.
In an August 23, 2019 case summary report, the employing establishment’s OIG advised
that appellant certified on an April 2017 Form EN1032 that he was not employed. The letter
included a report from a special agent, M.M., reporting that appellant was a mechanic working at
the automotive repair shop. The evidence indicated that appellant was observed working on
vehicles from approximately September 19, 2016 through March 12, 2019 at the automotive repair
shop. The employing establishment’s OIG provided several reports, which detailed the employing
establishment’s OIG’s investigative activities, along with attachments that documented
surveillance.
By decision dated November 26, 2019, OWCP found that appellant forfeited his
entitlement to compensation for the period January 18, 2016 through April 18, 2017 because he
knowingly failed to disclose his outside earnings and employment, pursuant to section 8106(b)(2)
of FECA.4 It explained that he had knowingly failed to report earnings and employment activities
when submitting an April 18, 2017 Form EN1032, which covered the prior 15 months of activity.
On November 26, 2019 OWCP notified appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $38,178.96 as he forfeited entitlement
to compensation from January 18, 2016 through April 18, 2017. It further advised him of its
preliminary determination that he was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment. OWCP requested that appellant complete the
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. Additionally, it notified him that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.5
On December 5, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the November 26, 2019
forfeiture decision. On December 5, 2019 counsel requested a prerecoupment hearing regarding

4

5 U.S.C. § 8106(b)(2).

5

In a payment history worksheet dated November 26, 2019 OWCP provided a payment history for the period
January 18, 2016 through April 18, 2017: from January 18 through February 6, 2016 OWCP paid appellant
$1,661.43; from February 7 through March 5, 2016 OWCP paid appellant $2,327.61; from March 6, 2016 through
February 4, 2017 OWCP paid appellant $2,335.00 every 28 days for 12 periods for a total payment of $28,020.00;
from February 5 through March 4, 2017 OWCP paid appellant $2,341.71; from March 5 through April 1 2017 OWCP
paid appellant $2,382.00; and from April 2 through 18, 2017 OWCP paid appellant $1,446.21 for a total of $38,178.96.

3

the November 26, 2019 preliminary overpayment determination. He subsequently requested that
hearings for both decisions be changed to requests for a review of the written record.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 26, 2019 forfeiture decision.
By decision dated June 2, 2020, OWCP finalized its preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$38,178.96 because he forfeited his compensation from January 18, 2016 through April 18, 2017.
It found that appellant was at fault in the creation of the overpayment because he made an incorrect
statement as to a material fact, which he knew or should have known to be incorrect thereby
precluding waiver of recovery of the overpayment. OWCP required recovery of the overpayment
by payment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that an employee who fails to make an affidavit or
report when required or knowingly omits or understates any part of her earnings, forfeits his or her
right to compensation with respect to any period for which the affidavit or report was required.6
An employee, however, can only be subjected to the forfeiture provision of 5 U.S.C. § 8106
if he or she knowingly failed to report employment or earnings. It is not enough to merely establish
that there were unreported earnings.7 OWCP procedures recognize that forfeiture is a penalty,8
and, as a penalty provision, it must be narrowly construed.9 The term “knowingly” is defined
within OWCP’s regulations as with knowledge, consciously, willfully, or intentionally.10
OWCP’s regulations define earnings from employment or self-employment as: (1) gross
earnings or wages before any deductions and includes the value of subsistence, quarters,
reimbursed expenses and any offer goods or services received in kind as remuneration; or (2) a
reasonable estimate of the cost to have someone else perform the duties of an individual who
accepts no remuneration.11 Neither lack of profits nor the characterization of the duties as a hobby
removes an unremunerated individual’s responsibility to report the estimated cost to have someone
else perform his or her duties.12

6

5 U.S.C. § 8106(b)(1) and (2), respectively.

7

T.G., Docket No. 19-0051 (issued August 20, 2019); P.H., Docket No. 17-1362 (issued March 13, 2018).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

9

Christine P. Burgess, 43 ECAB 449 (1992).

10

20 C.F.R. § 10.5(n); R.A., Docket No. 18-0406 (issued January 28, 2019); Anthony A. Nobile, 44 ECAB
268 (1992).
11

Id. at § 10.5(g).

12

Id.

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant forfeited his entitlement to
wage-loss compensation for the period January 18, 2016 through April 18, 2017 as he knowingly
failed to report employment activities and earnings, pursuant to 5 U.S.C. § 8106(b)(2).
OWCP found that appellant forfeited his entitlement to compensation from January 18,
2016 through April 18, 2017 because he failed to report earnings from employment on a Form
EN1032 signed on April 18, 2017. On the form appellant indicated that he did not perform any
work for an employer and was not self-employed. He listed no earnings from employment or selfemployment.
On August 23, 2019 an investigator with the employing establishment’s OIG related that
appellant was a mechanic working at an automotive repair shop during the period covered by the
April 2017 EN1032 form. The evidence indicated that OIG investigators observed appellant
working on vehicles from approximately September 19, 2016 through March 12, 2019 at the
automotive repair shop. The OIG interviewed the owner of the automotive repair shop, W.Z., who
stated that appellant worked at the automotive repair shop approximately 15 to 20 hours a week.
W.Z. indicated that appellant was not employed by the automotive repair shop, but he paid him in
favors, such as vehicle parts and bought him lunch in exchange for appellant fixing customer cars.
In a report dated March 12, 2019, the OIG investigator summarized his interview with appellant
who confirmed working an average of 20 to 30 hours a week at the automotive repair shop since
at least 2016. He indicated that he did not get paid, but worked on a trade or “barter system.”
Appellant reported that he worked on customers’ vehicles so he could work on his own vehicles.
He stated that the owner of the automotive repair shop, W.Z., buys him parts and lunch in exchange
for helping fix customers’ cars.
OWCP’s regulations provide that, if an employee knowingly omits or understates earnings
or work activity in making a report, he or she shall forfeit the right to compensation with respect
to any period for which the report was required.13
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
“knowingly” failed to report earnings or employment. OWCP has the burden of proof to establish
that a claimant did, either with knowledge, consciously, willfully, or intentionally, fail to report
earnings from employment.14 Appellant completed EN1032 forms, which advised him that he
must report both all employment and all earnings from employment and self-employment. The
form provided that he could be subject to criminal prosecution for false or evasive answers or
omissions. The factual circumstances of record, including appellant’s signature on the Form
EN1032, provide persuasive evidence that he “knowingly” omitted his employment information.15

13

20 C.F.R. § 10.529(b); Harold F. Franklin, 57 ECAB 287 (2006).

14

Id. at § 10.5(n).

15

See G.R., Docket No. 15-1047 (issued July 8, 2016).

5

The Board, thus, finds that appellant misrepresented his employment activity and, therefore,
forfeited his right to all compensation for the period January 18, 2016 through April 18, 2017.
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8106(b), compensation forfeited under this subsection, if already paid,
shall be recovered under section 8129 of this title, unless recovery is waived under that section.16
Section 10.529 of OWCP’s implementing regulations provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity or
earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. [§] 8129
[recovery of overpayments] and other relevant statues.”17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $38,178.96.
Appellant forfeited his right to compensation for the period January 18, 2016 through
April 18, 2017. As noted above, OWCP may declare an overpayment of compensation for any
compensation already paid for the period of a forfeiture of compensation. If a claimant has any
employment, including self-employment or involvement in a business enterprise, during a period
covered by a Form EN1032, which he or she fails to report, a claimant is not entitled to
compensation for any portion of the period covered by the report, even though he or she may not
have had earnings during a portion of that period.18 OWCP determined that it paid appellant net
compensation in the amount of $38,178.96 during the period in question. The Board, accordingly,
finds that an overpayment of compensation in the amount of $38,178.96 has been established.19
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA provides that, “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
16

5 U.S.C. § 8106(b).

17

20 C.F.R. § 10.529; see also G.G., Docket No. 14-1848 (issued August 4, 2016).

18

See Louis P. McKenna, Jr., 46 ECAB 428 (1994).

19

See J.N., Docket No. 13-1761 (issued July 1, 2014).

6

equity and good conscience.” Section 10.433 of OWCP’s implementing regulations provides that
in determining whether a claimant is at fault, it will consider all pertinent circumstances. An
individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment, thereby precluding waiver of recovery of the overpayment.
The record establishes that appellant forfeited his entitlement to compensation benefits
because he had unreported employment activity during the period January 18, 2016 through
April 18, 2017 and knowingly failed to furnish this material information to OWCP. Appellant
acknowledged a certification clause on the Form EN1032, which advised him that he might be
subject to civil, administrative, or criminal penalties if he knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. By signing this form, he is deemed
to have acknowledged his duty to report any employment, self-employment, or involvement in a
business enterprise. Appellant indicated that he had no employment or earnings from employment
during the covered periods and, thus, failed to furnish information, which he knew or should have
known to be material to OWCP.20 The Board, thus, finds that he is at fault in the creation of the
overpayment and is, thereby, precluded from waiver of recovery.
CONCLUSION
The Board finds that OWCP properly found that appellant forfeited his entitlement to
compensation from January 18, 2016 through April 18, 2017 as he knowingly failed to report
earnings from employment. The Board further finds that he received an overpayment of
$38,178.96 as a result of the forfeiture and that he was at fault in the creation of the overpayment
and, thus, not entitled to waiver of recovery of the overpayment.

20

See G.Z., Docket No. 16-0892 (issued May 19, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the June 2 and 1, 2020 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: June 16, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 10-2010
Issued: May 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On August 3, 2010 appellant filed a timely appeal from a June 28, 2010 decision of the
Office of Workers’ Compensation Programs regarding a schedule award. Pursuant to the Federal
Employees’ Compensation Act1 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 established that he sustained more than a three percent
permanent impairment of the left lower extremity, for which he received a schedule award.
On appeal, counsel asserts that the Office’s June 28, 2010 schedule award decision is
contrary to fact and law.

1

5 U.S.C. §§ 8101 et seq.

FACTUAL HISTORY
The Office accepted that on or before February 28, 2001 appellant, then a 56-year-old
letter carrier, sustained a torn medial meniscus of the left knee.2 On April 20, 2001 appellant
underwent a partial medial meniscectomy. Dr. Gordon P. Marshall, an attending Board-certified
orthopedic surgeon, released appellant to full duty as of June 19, 2001. He noted on
February 18, 2002 that appellant had residual chondromalacia of the medial femoral condyle and
patella.
The Office later accepted that appellant sustained a right knee sprain on
September 20, 2004.3 On March 20, 2007 it obtained a second opinion report from Dr. Jonathan
Clark Race, a Board-certified orthopedic surgeon, to determine the appropriate percentage of
permanent impairment to appellant’s right knee. Dr. Race noted briefly that the left knee showed
no instability, crepitus or effusion.
On November 6, 2008 appellant claimed a schedule award.4 In a January 12, 2009 letter,
it requested that he submit a report from his attending physician addressing whether he had
attained maximum medical improvement and offering an impairment rating according to the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (hereinafter).
By decision dated February 17, 2009, the Office denied appellant’s schedule award claim
as he did not submit a finding of maximum medical improvement or an impairment rating.
Following a June 15, 2009 hearing, appellant submitted a June 23, 2009 impairment
rating from Dr. John W. Ellis, an attending Board-certified family practitioner. On examination
of the left knee Dr. Ellis found palpable and audible crepitation, flexion limited to 81 degrees,
negative 6 degrees of extension and moderate laxity of the medial collateral and anterior cruciate
ligaments. He noted that appellant scored 108 on the A.M.A., Guides PDQ pain questionnaire
and 22 on the American Academy of Orthopedic Surgeons (AAOS) pain questionnaire. Dr. Ellis
diagnosed a torn lateral meniscus, traumatic arthritis and moderate postsurgical ligament laxity.
He opined that appellant had reached maximum medical improvement. Referring to the sixth
edition of the A.M.A., Guides, Dr. Ellis found moderate or class 2 ligament laxity according to
Table 16-3, page 510,5 equaling a 22 percent impairment of the left leg, with an additional

2

The Office initially denied the claim by September 10, 2001 decision on the grounds that causal relationship
was not established. Following additional development, it accepted the claim by decision dated and finalized
March 18, 2002. Appellant retired from the employing establishment in April 2005.
3

File No. xxxxxx723.
January 2010.

The Office doubled File No. xxxxxx723 under master File No. xxxxxx480 in

4

On October 26, 2007 appellant submitted an incomplete (Form CA-7) claiming a schedule award. In letters
dated November 27, 2007 and September 22, 2008, the Office requested that he submit a complete claim form, as
well as an impairment rating from an attending physician.
5

Table 16-3, pages 509-10 of the sixth edition of the A.M.A., Guides is entitled “Knee Regional Grid -- Lower
Extremity Impairments.”

2

3 percent for partial lateral meniscectomy according to Table 16-3, page 509. He combined
these impairments to total a 24 percent impairment of the left lower extremity.
By decision dated and finalized September 15, 2009, an Office hearing representative set
aside the Office’s February 17, 2009 decision and remanded the case for referral to an Office
medical adviser for calculation of the appropriate percentage of permanent impairment.
In an October 6, 2009 report, an Office medical adviser noted that Dr. Race found no
instability or crepitus in the left knee while Dr. Ellis observed moderate ligament laxity and
significant crepitus. The medical adviser opined that these discrepancies warranted referral to a
Board-certified physiatrist to obtain an impairment evaluation.
On October 20, 2009 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Zvi Kalisky, a Board-certified physiatrist, to obtain an impairment rating.
In a November 18, 2009 report, Dr. Kalisky reviewed the medical record and statement of
accepted facts. He noted a grade modifier for Functional History (GMFH) of two as appellant
walked with an antalgic limp. On examination of the left knee, Dr. Kalisky found tenderness to
palpation over the medial joint line, no mediolateral instability, mild extensor weakness and a
range of motion of 0 to 100 degrees. He also noted an AAOS score of 40. Dr. Kalisky
diagnosed status post left knee medial meniscus tear, status post partial medial meniscectomy
with chondroplasty of the medial femoral condyle and patella and nonoccupational
chondromalacia and osteoarthritis of the left knee. He found that appellant reached maximum
medical improvement. Referring to the sixth edition of the A.M.A., Guides, Dr. Kalisky found
that, according to Table 16-3, appellant had an impairment class for the diagnosed condition
(CDX) of one for meniscal injury with partial medial meniscectomy, with a default value of C
or two percent and a grade modifier for Physical Examination (GMPE) of two for moderate
clinical findings. He noted that a grade modifier Clinical Studies (GMCS) was not applicable as
the CDX was based in part on magnetic resonance imaging scan findings. Using the net
adjustment formula of (GMFH - CDX) + (GMPE – CDX) + (GMCS – CDX), Dr. Kalisky found
a +2 modifier, moving the default value of C to E, equaling a three percent impairment of the left
lower extremity.
In a December 23, 2009 report, an Office medical adviser reviewed Dr. Kalisky’s report
and opined that appellant reached maximum medical improvement as of November 18, 2009.
He applied the net adjustment formula of (GMFH - CDX) + (GMPE – CDX) + (GMCS – CDX).
The medical adviser concurred that (2-1) + (2-1) + (0) equaled a +2 modifier, raising the CDX
impairment from C to E, equaling a three percent impairment of the left lower extremity.
By decision dated January 11, 2010, the Office issued appellant a schedule award for a
three percent impairment of the left lower extremity. The period of the award ran from
November 8, 2009 to February 13, 2010.
In a January 19, 2010 letter, appellant requested a telephonic hearing, held
April 13, 2010. He asserted that Dr. Kalisky did not perform a thorough examination. The
hearing representative left the record open for 30 days to allow counsel to submit a new report
from Dr. Ellis. Appellant did not submit any additional evidence.

3

By decision dated and finalized June 28, 2010, the Office hearing representative affirmed
the January 11, 2010 decision. She found that the Office medical adviser applied the appropriate
portions of the A.M.A., Guides to Dr. Kalisky’s clinical findings to rate a three percent
impairment of the left lower extremity.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of the Act6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.7 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in
2008.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning (ICF)
Disability and Health.9 Under the sixth edition, the evaluator identifies the impairment class for
the CDX, which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.10 The
net adjustment formula is (GMFH - CDX) + (GMPE - DCX) + (GMCS - CDX).
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a torn medial meniscus of the left knee
necessitating a partial medial meniscectomy. On November 6, 2008 appellant claimed a
schedule award.
The Office obtained a second opinion from Dr. Kalisky, a Board-certified physiatrist,
who performed a thorough clinical examination, noted detailed clinical findings and reviewed
the medical record and statement of accepted facts. Applying Table 16-3 of the A.M.A., Guides
to his findings, Dr. Kalisky calculated a three percent impairment of the left leg due to status post
medial meniscectomy, with grade modifiers for functional history and physical examination
findings. An Office medical adviser reviewed Dr. Kalisky’s report and agreed with his
assessment of a three percent impairment of the left leg. Based on the Office medical adviser’s
6

5 U.S.C. §§ 8101-8193.

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
9

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The [ICF], Disability and Health: A Contemporary Model
of Disablement.”
10

Id., at pp. 494-531.

4

review of Dr. Kalisky’s rating, the Office granted appellant a schedule award for a three percent
impairment of the left lower extremity. Appellant requested a hearing, at which he contended
that Dr. Kalisky did not perform an adequate examination. By June 28, 2010 decision, the Office
affirmed the prior schedule award.
The Board finds that the Office medical adviser applied the appropriate tables and
grading schemes of the sixth edition of the A.M.A., Guides to Dr. Kalisky’s clinical findings.
The Office medical adviser’s calculations were accurate. There is no medical evidence of record
utilizing the appropriate elements of the sixth edition of the A.M.A., Guides demonstrating a
greater percentage of permanent impairment. The Board notes that although counsel indicated at
hearing that he would submit additional medical evidence, he did not do so. The Office properly
relied on the Office medical adviser’s rating of a three percent impairment of the left lower
extremity.
On appeal, counsel contends that the Office’s June 28, 2010 decision is contrary to fact
and law. As stated, the weight of the medical evidence does not establish that appellant
sustained more than a three percent impairment of the left lower extremity, for which he received
a schedule award. The Office medical adviser properly applied the A.M.A., Guides to
Dr. Kalisky’s clinical findings. There is no medical evidence of record supporting greater
impairment.
CONCLUSION
The Board finds that appellant has three percent permanent impairment of the left lower
extremity, for which he received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 28, 2010 is affirmed.
Issued: May 12, 2011
Washington, DC

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

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

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

6


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1976
Issued: January 28, 2008

Case Submitted on the Record

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

JURISDICTION
On July 24, 2007 appellant timely appealed from the Office of Workers’ Compensation
Programs’ February 23, 2007 merit decision regarding her entitlement to schedule award
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 19 percent left leg impairment, for which she received a schedule award.
FACTUAL HISTORY
On August 20, 1992 appellant, then a 26-year-old letter carrier, filed a traumatic injury
claim alleging that on that day she injured her left knee when she slipped on a set of stairs. The
Office accepted her claim for torn left knee anterior cruciate ligament and torn lateral meniscus
with left knee arthroscopy on December 18, 1992 and paid appropriate benefits. On January 26,
1993 appellant returned to light-duty work. She continues to work in this capacity.

On November 23, 2004 appellant requested a schedule award. In a September 2, 2004
medical report, Dr. Nicholas Diamond, a family practitioner, noted the history of injury and
presented his examination findings, which included a physical examination along with subjective
and objective factors. He diagnosed post-traumatic partial tear of the left knee anterior cruciate
ligament; complex tear of the posterior horn of the lateral meniscus; status post arthroscopic
surgery consisting of partial lateral meniscectomy; debridement of the anterior cruciate ligament
and loose body removal; and chronic post-traumatic patellar tendinitis of the left knee.
Dr. Diamond opined that appellant had 23 percent total left leg impairment. This consisted of
13 percent impairment for left thigh atrophy of three centimeters (cm) and 8 percent impairment
for left calf atrophy of one cm; and 3 percent pain-related impairment. Dr. Diamond noted that
he utilized the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001) to determine the percentage of impairment for leg
atrophy (Table 17-6) and for pain-related impairment (Table 18-1). He stated that the reasons for
his opinions were the history provided by appellant, the physical examination, and duties of the
claimant’s occupation and review of medical records.
In a January 25, 2005 report, an Office medical adviser reviewed the medical evidence
and found that appellant reached maximum medical improvement on September 2, 2004. The
Office medical adviser used the diagnosis-based estimate of impairment provided by the A.M.A.,
Guides and opined that appellant had an 11 percent left leg impairment. This was comprised of
two percent impairment for partial lateral meniscectomy; seven percent impairment for mild
cruciate ligament laxity; and three percent pain-related impairment. The Office medical adviser
opined that, under the A.M.A., Guides, section 17.2d, page 530, it was incorrect for Dr. Diamond
to rate an impairment based on leg muscle atrophy.
By decision dated May 24, 2005, the Office granted appellant a schedule award for
11 percent left lower extremity impairment.
On May 27, 2005 appellant disagreed with the Office’s May 24, 2005 decision and
requested an oral hearing, which was held December 7, 2005. By decision dated February 22,
2006, an Office hearing representative vacated the Office’s May 24, 2005 decision. The Office
hearing representative found that the Office medical adviser did not provide sufficient rationale
to support his finding that the method of impairment assessment utilized by Dr. Diamond for leg
muscle atrophy was inappropriate. Thus, the case was remanded for additional development and
the issuance of a de novo decision.
In accordance to the Office hearing representative’s remand instructions, the Office
prepared a statement of accepted facts and forwarded the case to another Office medical adviser
to review the case and provide a reasoned medical opinion as to why Dr. Diamond’s opinion did
not conform to the A.M.A., Guides. In a report dated August 16, 2006, the Office medical
adviser opined that the final left lower extremity impairment was 19 percent with a date of
maximum medical improvement of September 2, 2004. He found 16 percent lower extremity
impairment related to thigh and calf atrophy. The Office medical adviser utilized the A.M.A.,
Guides, and found, under Table 17-6, page 530, a three cm thigh atrophy equated to a 13 percent
impairment and, under Table 17-6, page 530, a one cm calf atrophy equated to a 3 percent
impairment. He also found that, under Chapter 18, page 573, appellant had three percent
impairment for pain. The Office medical adviser combined the 16 percent impairment related to

2

thigh and calf atrophy with the 3 percent impairment for pain and found 19 percent total left
lower extremity impairment.
By decision dated August 18, 2006, the Office found that appellant was entitled to
19 percent total left leg impairment. Thus, it awarded an additional 8 percent left leg impairment
to the 11 percent left lower extremity impairment previously awarded.
On August 25, 2006 appellant disagreed with the Office’s August 18, 2006 decision and
requested an oral hearing, which was held December 11, 2006. At the hearing, her attorney
argued that a conflict in medical opinion existed between the Office medical adviser and
Dr. Diamond with regard to left calf atrophy. No new evidence was submitted.
By decision dated February 23, 2007, an Office hearing representative affirmed the
Office’s August 18, 2006.
On appeal, appellant’s attorney argues that a conflict in medical opinion exists between
the Office medical adviser and Dr. Diamond with regard to left calf atrophy.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 sets forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
The A.M.A., Guides provide that in evaluating lower extremity impairment, it is the
responsibility of the evaluating physician to explain in writing why a particular method to assign
the impairment rating was chosen. When uncertain about which method to choose, the evaluator
should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.4
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the nature and

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

Richard F. Williams, 55 ECAB 343, 347 (2004).

3

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.5
ANALYSIS
In the current claim, the Office accepted that appellant sustained torn left knee anterior
cruciate ligament and torn lateral meniscus as a result of her work-related injury and authorized a
left knee arthroscopy. Appellant subsequently requested a schedule award. In his September 2,
2004 report, appellant’s treating physician, Dr. Diamond, opined that appellant had 23 percent
total left lower extremity impairment based on 20 percent impairment for leg muscle atrophy and
3 percent pain impairment. An Office medical adviser reviewed Dr. Diamond’s findings and,
while he concurred with his determination that appellant had 3 percent pain impairment, found
that appellant only had 16 percent impairment for leg muscle atrophy, for 19 percent total left leg
impairment. Appellant’s attorney argues that a conflict in medical opinion evidence was created
due to the differences in leg muscle atrophy impairment (specifically the impairment resulting
from the calf atrophy) and the case should be remanded to an impartial medical specialist to
resolve the conflict.
Dr. Diamond found that appellant’s leg muscle atrophy was comprised of three cm thigh
atrophy and one cm calf atrophy. Both he and the Office medical adviser properly found that,
under Table 17-6, page 530 of the A.M.A., Guides, three cm thigh atrophy equated to 13 percent
impairment. The difference in opinion, however, resulted in the amount of impairment arising
from one cm calf atrophy. Under Table 17-6, page 530 of the A.M.A., Guides, Dr. Diamond
found that one cm calf atrophy equated to eight percent impairment while the Office medical
adviser found it equated to three percent impairment.
Under Table 17-6, page 530 of the A.M.A., Guides, a calf atrophy of 1 to 1.9 cm can
range from three to eight percent lower extremity impairment. One cm of calf atrophy is at the
very bottom of the range of three to eight percent impairment. The Office medical adviser
accorded three percent impairment or the bottom impairment rating for one cm calf atrophy. The
Office medical adviser’s opinion that appellant is entitled to three percent impairment seems
more appropriate based on the fact that the one cm calf atrophy is at the bottom of the range
provided by the A.M.A., Guides. Thus, the Office medical adviser’s opinion that appellant has a
three percent impairment rating based on calf atrophy is a proper interpretation of the A.M.A.,
Guides. Dr. Diamond accorded eight percent impairment or the top impairment rating. The
A.M.A., Guides provides that the examiner must use his clinical judgment to estimate the
appropriate percentage within this range.6 Dr. Diamond did not adequately explain how he
derived his impairment rating within the range of values shown in Table 17-6. As such, the
impairment rating made by Dr. Diamond for calf atrophy is of diminished probative value and is
insufficient to provide a conflict of medical opinion with the Office medical adviser.

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (March 1995).
6

James E. Earle, 51 ECAB 567 (2000).

4

Under the Combined Values Chart on page 604 of the A.M.A., Guides, the combined leg
muscle atrophy results in a 16 percent impairment (13 percent thigh atrophy impairment
combined with 3 percent calf atrophy impairment). The Board also notes that both the Office
medical adviser and Dr. Diamond added three percent pain impairment under Chapter 18 of the
A.M.A., Guides. This was done in error as the Board has held that a separate pain calculation
under Chapter 18 is not to be used in combination with other methods to measure impairment
due to sensory pain as outlined in Chapter 13, 16 and 17 of the fifth edition of the A.M.A.,
Guides.7 Neither Dr. Diamond nor the Office medical adviser explained why any pain related to
appellant’s employment-related condition could not be adequately rated in Chapter 17 of the
A.M.A., Guides. Thus, the medical evidence conforming with the A.M.A., Guides establishes
that appellant has 16 percent permanent impairment of the left leg. Consequently, appellant has
not established entitlement to a schedule award greater than the 19 percent impairment awarded
to her left lower extremity by the Office.
CONCLUSION
The Board finds that appellant does not have more than a 19 percent impairment of her
left lower extremity for which she received a schedule award.

7

T.H., 58 ECAB ___ (Docket No. 06-1500, issued January 31, 2007). See L.H., 58 ECAB ___ (Docket No. 061691, issued June 18, 2007) (the impairment ratings in the body organ system chapters of the A.M.A., Guides make
allowance for any accompanying pain).

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 28, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, SAN FRANCISCO
BULK MAIL CENTER, Richmond, CA,
Employer
__________________________________________

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

Docket No. 14-1868
Issued: March 19, 2015

Case Submitted on the Record

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

JURISDICTION
On August 25, 2014 appellant filed a timely appeal from an August 11, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying an additional
schedule award. 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 more than three percent permanent impairment of his
left leg, for which he received a schedule award.
On appeal, appellant contends that Dr. Fred Blackwell, an attending Board-certified
orthopedic surgeon, deliberately waited to complete attending physician’s reports (Form CA-20)
after the expiration of a 30-day limitation period to keep him from receiving a schedule award.
He also provides additional new evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 1998 appellant, then a 51-year-old mail handler, filed an occupational
disease claim alleging that on November 21, 1998 he first became aware of his knee injury and
realized that his injury was caused or aggravated by his federal employment.2 By letter dated
February 10, 1999, OWCP accepted his claim for left knee meniscus tear and repair.3
In a decision dated April 12, 2011, OWCP granted appellant a schedule award for three
percent impairment of the left leg.
On June 16, 2014 appellant filed a claim for an additional schedule award and submitted
medical evidence. In a March 12, 1999 Form CA-20, Dr. Joseph C. Cheng, an attending Boardcertified orthopedic surgeon, described a history of injury that appellant engaged in repetitive use
and experienced wear and tear. He indicated with an affirmative mark that appellant sustained a
meniscus tear that was caused or aggravated by an employment activity.
In a June 16, 2014 Form CA-20, Dr. Blackwell provided a history of injury that appellant
noted the onset of left knee pain and swelling at work. He indicated with an affirmative mark
that appellant sustained a left knee injury that was caused or aggravated by an employment
activity. Dr. Blackwell explained that the injury was caused by pushing and pulling heavy mail.
By letter dated July 9, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit additional medical evidence,
including an impairment opinion report from his attending physician in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Appellant was afforded 30 days to submit the requested
evidence.
On July 15, 2014 appellant submitted Dr. Blackwell’s July 8, 2014 work status report.
Dr. Blackwell diagnosed left knee sprain and advised that appellant was unable to return to work.
He noted that appellant had retired.
In an August 11, 2014 decision, OWCP denied appellant’s claim for an additional
schedule award, finding that the medical evidence submitted was insufficient to establish that he
had more than three percent impairment of the left leg.

2

20 C.F.R. § 501.2(c)(1); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). In a prior appeal, the Board affirmed a
July 21, 2011 nonmerit OWCP decision which denied appellant’s request for reconsideration of the denial of his
occupational disease claim for bilateral hip conditions, under 5 U.S.C. § 8128; OWCP File No. xxxxxx610. Docket
No. 12-49 (issued May 16, 2012).
3

The record does not indicate that appellant underwent the authorized left knee surgery.

2

LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides8 as the appropriate edition for all awards
issued after that date.9
A claimant seeking compensation under FECA10 has the burden to establish the essential
elements of his or her claim.11 With respect to a schedule award, it is appellant’s burden of proof
to establish an increased schedule award.12 A claimant may seek an increased schedule award if
the evidence establishes that he or she sustained an increased impairment causally related to an
employment injury.13 The medical evidence must include a detailed description of the
permanent impairment.14
ANALYSIS
OWCP accepted that appellant sustained an employment-related meniscus tear of the left
knee. By decision dated April 12, 2011, it awarded him a schedule award for three percent
impairment to the left leg. Appellant requested an increased award. In an August 11, 2014
decision, OWCP found that he was not entitled to an additional schedule award for the left leg.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Ausbon N. Johnson, 50 ECAB 304 (1999).

7

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

5 U.S.C. §§ 8101-8193.

11

John W. Montoya, 54 ECAB 306 (2003).

12

Edward W. Spohr, 54 ECAB 806, 810 (2003).

13

See Rose V. Ford, 55 ECAB 449 (2004).

14

See Vanessa Young, 55 ECAB 575 (2004). OWCP procedures provide that the medical evidence must include
a detailed report with an explanation as to how the impairment rating was calculated. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(c) (January 2010).

3

The Board finds that appellant did not meet his burden of proof to establish that he sustained
greater impairment.
In a March 12, 1999 Form CA-20, Dr. Cheng, an attending physician, indicated with a
checkmark that appellant sustained a meniscus tear that was caused or aggravated by an
employment activity. His report did not provide an opinion as to whether appellant sustained
permanent impairment due to the accepted injury. As well, Dr. Cheng did not provide any
impairment rating under the A.M.A., Guides. The Board finds, therefore, that his report is of
limited probative value and insufficient to establish appellant’s entitlement to an increased
schedule award.
Similarly, Dr. Blackwell’s June 16, 2014 Form CA-20 is insufficient to establish an
increased schedule award. He noted by checking a box that appellant sustained a left knee injury
that was caused or aggravated by pushing and pulling heavy mail at work, but he did not provide
any opinion as to whether appellant sustained permanent impairment due to the accepted injury
or an impairment rating based on the A.M.A., Guides. In a July 8, 2014 report, Dr. Blackwell
diagnosed left knee sprain and found that appellant was disabled for work. He did not address
permanent impairment pursuant to the A.M.A., Guides. For the stated reasons, the Board finds
that Dr. Blackwell’s reports are insufficient to establish appellant’s burden of proof.
The Board finds that there is no probative medical evidence establishing that appellant
has more than three percent impairment of his left leg causally related to the accepted
employment injury. As such appellant is not entitled to an increased schedule award.
On appeal, appellant contended that Dr. Blackwell deliberately waited to complete CA20 forms after the expiration of a 30-day limitation period to keep him from receiving a schedule
award. He did not submit any evidence to substantiate his assertion. Moreover, the Board notes
that it is appellant’s burden of proof to establish an increased schedule award.15
The Board notes that appellant submitted new evidence after OWCP issued its August 11,
2014 decision and on appeal. The Board has no jurisdiction to review this evidence for the first
time on appeal.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that he sustained greater than three
percent impairment of his left leg for which he received a schedule award.

15

Supra note 12.

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2015
Washington, DC

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

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

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

5


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

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

Docket No. 16-1814
Issued: April 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 12, 2016 appellant filed a timely appeal from a July 14, 2016 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant’s actual earnings as a customer care agent fairly and
reasonably represented her wage-earning capacity effective January 11, 2016.
FACTUAL HISTORY
On July 24, 2009 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained knee strain and other lower extremity conditions
as a result of factors of her federal employment. OWCP accepted her claim for right and left
1

5 U.S.C. § 8101 et seq.

knee chondromalacia of the lateral tibial plateau, right and left knee discoid of the lateral
meniscus, left knee lateral meniscal tear, and bilateral plantar fasciitis, bilateral ankle strain, foot
strain, and lumbar strain. It did not initially accept any period of disability as causally related to
the accepted injury. Appellant accepted a modified employment position on May 11, 2010. She
received intermittent wage-loss compensation benefits on the supplemental rolls commencing
April 6, 2011. Appellant underwent a left plantar fascia release on May 25, 2012 and received
wage-loss compensation benefits on the periodic rolls as of July 29, 2012. On June 6, 2013 she
underwent an accepted left knee arthroscopy with partial lateral menisectomy and debridement.
Appellant’s treating physician, Dr. Hosea Brown III, a specialist in internal medicine,
reported on February 3, 2014 that appellant could return to modified work on February 3, 2014.
He completed a duty status report (Form CA-17) on February 3, 2014 wherein he noted
appellant’s work restrictions. Dr. Brown continued to examine appellant and provide work
restrictions throughout 2014 and 2015.
In a duty status report dated December 29, 2015, Dr. Brown recommended work
restrictions of lifting no more than 10 pounds intermittently, no more than four hours of standing
intermittently, no more than four hours of walking intermittently, no more than half an hour of
climbing intermittently, and no kneeling, pushing, or pulling more than two hours intermittently.
He advised that appellant must have sedentary work, and that she should have one five-minute
break per hour.
On January 6, 2016 appellant accepted a position as a customer care agent at the
employing establishment, effective January 9, 2016. The physical requirements of the position
required sitting in an office chair, occasional simple grasping of a computer mouse, occasional
pushing/pulling of a computer mouse, and occasional fine manipulations when using a keyboard.
The use of the mouse and keyboard were not continuous. Appellant began work in this position
on January 11, 2016.
By decision dated July 14, 2016, OWCP determined that appellant’s actual earnings as a
customer care agent commenced January 11, 2016 and fairly and reasonably represented her
wage-earning capacity. Appellant’s weekly pay rate when disability began was $1,086.69
(effective March 28, 2012) her current weekly pay rate for the job when injured (effective
January 11, 2016) was $1,151.13, and the current pay rate for her position (effective January 11,
2016) as a customer care agent was $1,151.13. It was noted that appellant returned to work on
January 11, 2016 as a customer care agent for $59,859.52, which equaled a weekly salary of
$1,151.13. Because the wages she earned as a customer care agent equaled the adjusted wages
of her date-of-injury position, OWCP found that there was no loss of wage-earning capacity.
Therefore, appellant was not entitled to receive further wage-loss compensation. However, she
remained eligible for medical benefits associated with her work injury.
LEGAL PRECEDENT
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning

2

capacity.2 Generally, wages actually earned are the best measure of a wage-earning capacity,
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.3
OWCP procedures state that, after a claimant has been working for 60 days, it will make
a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.4 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,5 has been codified at section 10.403 of OWCP
regulations. OWCP first calculates an employee’s wage-earning capacity in terms of percentage
by dividing the employee’s earnings by the current pay rate for the date-of-injury position.6
ANALYSIS
The Board finds that appellant’s actual earnings as a customer care agent for the
employing establishment fairly and reasonably represents her wage-earning capacity. On
January 6, 2016 appellant accepted a position as a customer care agent at the employing
establishment, effective January 11, 2016. The current pay rate for her position as a customer
care agent was $1,151.13, which equaled the adjusted wages of her date-of-injury position.
Thus, there was no loss of wage-earning capacity.7 On July 14, 2016 OWCP determined that
appellant’s actual earnings as a customer care agent beginning January 11, 2016 fairly and
reasonably represented her wage-earning capacity.
Dr. Brown, appellant’s treating physician, reported on December 29, 2015 that appellant
could work full-time modified duty with restrictions of no lifting no more than 10 pounds
intermittently, no more than four hours of standing intermittently, no more than four hours of
walking intermittently, no more than half an hour of climbing intermittently, no kneeling,
pushing, or pulling more than two hours intermittently. Dr. Brown advised that appellant must
have sedentary work, and that she should have one five-minute break per hour.
Appellant began full-time work as a customer care agent on January 11, 2016 and had
worked in this position for more than 60 days when OWCP determined her wage-earning
capacity.
2

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

3

Lottie M. Williams, 56 ECAB 302 (2005).

4

See L.J., Docket No. 14-0970 (issued August 21, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.815.5 (June 2013).
5

5 ECAB 376 (1953).

6

20 C.F.R. § 10.403(d). The pay rate for compensation purposes is then multiplied by the wage-earning capacity
percentage. This amount is subtracted from the pay rate for compensation purposes to determine the loss of wageearning capacity.
7

The Board notes that under FECA, the term “disability” is defined as an inability, due to an employment injury,
to earn the wages the employee was receiving at the time of the injury, i.e., an impairment resulting in a loss of
wage-earning capacity. See generally, Y.O., Docket No. 16-1886 (issued February 24, 2017); Prince W. Wallace, 52
ECAB 357 (2001).

3

There is no evidence demonstrating that this employment position was seasonal or
temporary and there is no evidence demonstrating that she was working less than eight hours per
day. There is also no evidence that the position consisted of makeshift work designed for
appellant’s particular needs.8 Furthermore appellant did not stop work as a customer care agent
because of a change in her injury-related conditions. The evidence supports that appellant’s
wages as a customer care agent fairly and reasonably represented her wage-earning capacity.9
As appellant’s actual earnings in her position as a customer care agent fairly and
reasonably represent her wage-earning capacity, the Board must determine whether OWCP
properly calculated her wage-earning capacity based on her actual earnings.10 The Board finds
that OWCP properly found that she had no loss of wage-earning capacity based on her actual
earnings. Appellant was placed in a saved salary position and her current weekly earnings
equaled the current weekly wages of her date-of-injury position. Therefore, she had no loss of
wage-earning capacity under the Shadrick formula.
Accordingly, OWCP properly determined that appellant had no loss of wage-earning
capacity based on its finding that her actual earnings as a customer care agent fairly and
reasonably represented her wage-earning capacity.
On appeal, appellant expresses frustration at delayed payment of compensation regarding
past claims for wage-loss compensation. As OWCP has not issued a formal decision denying
appellant’s claim for wage loss, the Board lacks jurisdiction over that issue.11
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant’s actual earnings as a customer care agent fairly and
reasonably represented her wage-earning capacity effective January 11, 2016.

8

See J.C., 58 ECAB 700 (2007).

9

Id.

10

See J.C., Docket No. 08-1046 (issued August 19, 2008).

11

See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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