United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Newark, DE,
Employer
__________________________________________

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

Docket No. 16-1662
Issued: November 21, 2016

Case Submitted on the Record

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

JURISDICTION
On August 17, 2016 appellant, through counsel, filed a timely appeal from a July 26,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to factors of her federal employment.
FACTUAL HISTORY
On June 16, 2015 appellant, then a 65-year-old revenue agent, filed an occupational
disease claim (Form CA-2) for left hand/wrist tendinitis. She explained that she used her hands
all the time at work and that she was frequently on the computer performing repetitive hand
movements.3 Appellant first became aware of her claimed condition on May 6, 2015. She
realized the condition was employment related on June 3, 2015. Appellant did not stop work
around the time she filed her claim. She subsequently retired in January 2016.
In a June 30, 2015 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim, including a medical report with a physician’s opinion
supported by a medical explanation as to how her work activities caused, contributed to, or
aggravated her claimed medical condition.
In an undated statement that OWCP received on July 1, 2015, appellant further discussed
her activities at work, including typing on a computer and handling work files, which she
believed caused her left hand/wrist condition. She described the medical treatment she received
for her left upper extremity condition. Appellant also submitted a position description for her job
as a revenue agent.
In a report dated June 17, 2015, Dr. Matthew Eichenbaum, an attending Board-certified
orthopedic surgeon, indicated that appellant presented on June 3, 2015 with moderate swelling in
her left radial wrist and a chief complaint of left wrist pain. Appellant reported that her
symptoms began four months ago without a specific injury and that the symptoms were
aggravated by lifting and twisting. Dr. Eichenbaum provided a discussion of his review of
appellant’s systems and noted that the findings of April 2, 2015 x-rays of appellant’s left hand
and wrist showed moderate osteoarthritis, mainly at the thumb and the fingers, with no fracture
or other significant radiographic abnormality of the left hand or left wrist. He diagnosed left
hand pain, left synovitis/tenosynovitis, and left de Quervain’s tenosynovitis. Dr. Eichenbaum
described his injection of the tendon sheath of the left wrist with Marcaine and Celestone.4
In a July 27, 2015 duty status report (Form CA-17), Dr. Eichenbaum listed the date of
injury as May 6, 2015 and the reported manner in which the injury occurred as “[l]eft hand/wrist
utilized in grabbing paper, light lifting [and] typing and data entry into computer.” He described
the clinical findings as wrist pain and swelling with symptoms relieved by injection on
3

Appellant also noted that she was previously diagnosed with right carpal tunnel syndrome, and had undergone
surgery in December 2014. She has a separate occupational disease claim for right carpal tunnel syndrome with a
January 17, 2014 date of injury (File No. xxxxxx595). Appellant’s right upper extremity condition is not the subject
of the present appeal.
4

Appellant also submitted an April 27, 2015 report in which Dr. Leo W. Raisis, an attending Board-certified
orthopedic surgeon, discussed his treatment of her right upper extremity.

2

June 3, 2015. Dr. Eichenbaum indicated that he advised appellant on June 3, 2015 that she could
resume her regular work on a full-time basis.
By decision dated September 24, 2015, OWCP denied appellant’s claim for a left
hand/wrist injury. It accepted that she engaged in work activities requiring repetitive hand and
wrist motion, but found that she had not submitted rationalized medical evidence establishing a
causal relationship between her claimed condition and the accepted work exposure.
By letter dated October 19, 2015, appellant, through counsel, requested a telephone
hearing with an OWCP hearing representative.
Appellant submitted a January 11, 2016 report in which she had reported to
Dr. Eichenbaum that her left wrist symptoms had worsened since her last visit, particularly after
“working on her computer.” She advised that she had retired from the employing establishment.
Dr. Eichenbaum diagnosed left wrist pain and left radial styloid tenosynovitis (de Quervain’s
tenosynovitis).
In March 14 and May 2, 2016 reports, Dr. Eichenbaum described his continued treatment
of the diagnosed conditions of left wrist pain and left radial styloid tenosynovitis (de Quervain’s
tenosynovitis). In the May 2, 2016 report, he noted that appellant would proceed with
de Quervain’s release surgery.
Appellant also submitted copies of reports in which her physical therapist detailed the
findings of physical therapy sessions.
During the hearing held on June 6, 2016, appellant described the activities at work which
she believed caused her left hand/wrist condition. She testified that she had been required to
type for approximately 6.5 hours per day, five days per week, from 1988 through January 2016,
and that she periodically had to lift and handle case files.
By decision dated July 26, 2016, OWCP’s hearing representative affirmed OWCP’s
decision denying appellant’s occupational disease claim. He accepted that appellant had been
required to type for approximately 6.5 hours per day, five days per week, from 1988 through
January 2016, and that she periodically had to lift and handle case files. However, the hearing
representative found that she had failed to submit medical evidence in which a physician had
provided an accurate history of injury, definitive diagnosis, and unequivocal medical opinion
addressing causal relationship between the accepted employment factors and a definitive
diagnosis, supported by medical rationale.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that the injury was sustained while in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are

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causally related to the employment injury.5 To establish fact of injury, an employee must submit
sufficient evidence to establish that he or she experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged.6 An employee must also establish that
such event, incident, or exposure caused an injury.7 These are the essential elements of each and
every compensation claim regardless of whether the claim is predicated upon a traumatic injury
or an occupational disease.8
OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.9 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, an employee must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.10
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.11 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established employment factors.12
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.13
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.14

5

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

6

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

7

Id.

8

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

9

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of
Claims, Chapter 2.800.2b (June 2011).
10

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41
ECAB 345 (1989).
11

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

12

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

14

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

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ANALYSIS
On June 16, 2015 appellant filed a Form CA-2 claiming that she sustained injury to her
left hand and wrist by performing work tasks over time which required repetitive motion of her
left hand and wrist. OWCP accepted that she had been required to type for approximately 6.5
hours per day, five days per week, from 1988 through January 2016, and that she periodically
had to lift and handle case files. In September 24, 2015 and July 26, 2016 decisions, it denied
appellant’s occupational disease claim because she had not submitted rationalized medical
evidence establishing a causal relationship between her diagnosed left hand/wrist condition and
the accepted work factors.
The Board finds that appellant did not meet her burden of proof to establish an
occupational disease in the performance of duty.
Appellant submitted a June 17, 2015 report in which Dr. Eichenbaum diagnosed left hand
pain, left synovitis/tenosynovitis, and left de Quervain’s tenosynovitis. Dr. Eichenbaum,
however, did not provide any opinion on the cause of the diagnosed left wrist conditions. The
Board has held that medical evidence which does not offer a clear opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.15
In a July 27, 2015 Form CA-17, Dr. Eichenbaum listed the date of injury as May 6, 2015
and the reported manner in which the injury occurred as “[l]eft hand/wrist utilized in grabbing
paper, light lifting [and] typing and data entry into computer.” He described the clinical findings
as wrist pain and swelling and indicated that appellant could resume her regular work on a fulltime basis as of June 3, 2015. Although Dr. Eichenbaum listed some of the work duties reported
by appellant, he did not provide a clear opinion that appellant’s diagnosed left wrist conditions
were related to these duties. He did not provide a rationalized medical opinion relating these
conditions to the accepted work factors.
Appellant also submitted a January 11, 2016 report in which Dr. Eichenbaum indicated
that appellant had reported that her left wrist symptoms had worsened since her last visit,
particularly after “working on her computer.”16 Dr. Eichenbaum diagnosed left wrist pain and
left radial styloid tenosynovitis (de Quervain’s tenosynovitis), but he did not provide a clear
opinion on the cause of these conditions.
In a March 2, 2016 report, Dr. Eichenbaum noted that appellant would proceed with
de Quervain’s release surgery. However, he did not provide any opinion that this proposed
surgery was necessitated by a work-related condition.
Appellant submitted copies of reports in which her physical therapist detailed the findings
of physical therapy sessions. However, the Board has held that physical therapists are not

15

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

16

Appellant advised that she was retired from the employing establishment.

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physicians under FECA, and therefore, their opinions do not constitute medical opinion evidence
and have no weight or probative value on medical matters.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515 (1983).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 08-1930
Issued: August 11, 2009

Case Submitted on the Record

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

JURISDICTION
On July 3, 2008 appellant filed a timely appeal from January 11, 2008 schedule award
decisions of the Office of Workers’ Compensation Programs and a May 6, 2008 nonmerit
decision, denying his request for an oral hearing. Pursuant to 20 C.F.R. §§ 510.2(c) and 501.3,
the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant has more than 32 percent impairment to his left
upper extremity, for which he received schedule awards; (2) whether appellant has any
impairment of his right upper extremity; and (3) whether the Office properly denied appellant’s
request for an oral hearing as untimely under 5 U.S.C. § 8124.

FACTUAL HISTORY
The Office accepted that appellant, then a 43-year-old aircraft overhaul supervisor,
sustained left shoulder adhesive capsulitis and lateral epicondylitis of the left elbow as a result of
an April 28, 2003 employment injury.1
On May 23, 2004 Dr. Leonard Simpson, an Office medical adviser found that appellant
had four percent left upper extremity impairment due to the accepted conditions. He rated
sensory impairment to the left shoulder due to the axillary nerve, noting that Table 16-15, page
492, provided a maximum impairment of five percent. Under Table 16-10, page 482, appellant
had a Grade 4 (25 percent) sensory deficit. Dr. Simpson multiplied the 5 percent maximum by
the 25 percent deficit, to find 1.25 percent impairment for shoulder pain (rounded to 1 percent).
He rated sensory impairment to the left elbow from the radial nerve, noting that Table 16-15
provided a maximum impairment of five percent. This was multiplied by the 25 percent grade
sensory deficit to also find a 1 percent sensory loss. The medical adviser noted that 160 degrees
of shoulder joint abduction was one percent impairment under Table 16-43, page 477.
One hundred and sixty degrees of shoulder flexion was also one percent impairment under Table
16-40, page 476. Dr. Simpson added the range of motion impairments (two percent) and then
combined this with the impairments for sensory loss to the shoulder and elbow to find four
percent total loss to the left upper extremity.
On June 3, 2004 the Office issued a schedule award for a four percent impairment of the
left upper extremity. The period of the award was from May 7 to August 2, 2004.
Appellant sustained a traumatic injury to his neck on January 5, 2005 while lifting and
moving heavy furniture from his office.2 The Office accepted the claim for a neck strain and
herniated discs at C5-6 and C6-7. It authorized anterior cervical discectomy and fusion surgery
with internal fixation at C6-7, which was performed on September 21, 2005. Appellant returned
to regular duty work on January 2, 2006.
In a decision dated March 7, 2005, an Office hearing representative set aside the June 3,
2004 schedule award and remanded the case for further development of the extent of appellant’s
impairment.
On June 13, 2005 Dr. Simpson again reviewed the medical evidence and found that
appellant had 23 percent permanent impairment to the left upper extremity. He noted the
previous rating of four percent based on sensory loss to the left arm and loss of range of motion.
Dr. Simpson advised that appellant also had 32 percent loss of grip strength, which under Table
16-13, page 509, was 20 percent impairment. Using the Combined Values Chart, he combined
the 20 percent grip strength loss with the prior 4 percent impairment for pain and loss of range of
motion to total 23 percent left upper extremity impairment.

1

The Office assigned claim file number xxxxxx804.

2

Office claim file number xxxxxx519.

2

In a July 20, 2005 decision, the Office granted a schedule award for an additional 19
percent impairment. As appellant previously received a 4 percent award, this amount was
deducted from the 23 percent impairment rating. The period of the award was from August 8,
2004 to September 26, 2005.
On August 16, 2006 appellant filed a claim for an increased schedule award.
On October 2, 2006 the Office referred appellant to Dr. Moola P. Reddy, a Boardcertified physiatrist, for a second opinion evaluation. On October 6, 2006 Dr. Reddy noted
appellant’s complaint of pain radiating into the left upper extremity. Motor strength was
reported as 5/5 to bilaterally, with some atrophy noted of the left arm. He diagnosed left C7
radiculopathy due to the accepted cervical disc herniation. Physical examination revealed
slightly limited cervical range of motion and no significant neck tenderness on palpitation.
In an October 25, 2006 report, Dr. Arthur S. Harris, an Office medical adviser, reviewed
the medical evidence. He found 12 percent impairment to the left upper extremity caused by
sensory and motor loss of the C7 nerve root. Under Table 16-13, page 489, the maximum
sensory loss of the C7 nerve root was five percent. Dr. Harris rated the extent of sensory loss
under Table 16-10 as Grade 3 (60 percent). When multiplied, this resulted in three percent
sensory loss. Under Table 16-13, the maximum loss for motor deficit was 35 percent. Dr. Harris
used Table 16-11, page 484, to rate the extent of loss of strength as Grade 4 (25 percent). When
multiplied, this resulted in 8.75 percent, rounded to 9 percent. He then used the Combined
Values Chart to find a total 12 percent left upper extremity impairment due to sensory and motor
loss of the C7 nerve root.
On May 30, 2007 the Office requested that Dr. Harris address whether appellant had any
permanent impairment to his right arm due to the accepted injuries. On June 9, 2007 Dr. Harris
advised that the medical evidence of record established impairment only to appellant’s left arm.
He noted that Dr. Reddy did not address any impairment to the right upper extremity from the
accepted cervical condition. Dr. Harris found that appellant had a total 32 percent left upper
extremity impairment. He used the Combined Values Chart to combine the 23 percent loss
previously awarded with the 12 percent impairment based on loss at the C7 nerve root.
In a June 13, 2007 treatment record, Dr. Santi Rao, a treating physician, noted that
appellant reported increased neck and arm symptoms on the right side. Appellant complained of
burning pain to his right and left upper back which went into both shoulders. He also reported
right hand numbness, decreased right side dexterity and some right arm weakness.
On August 27, 2007 Dr. Harris reviewed the medical evidence, including Dr. Rao’s
report. He noted that Dr. Rao did not provide any specific findings relevant to the right upper
extremity, which would allow for rating permanent impairment to the extremity. Dr. Rao did not
list any findings to support neurologic deficit to either upper extremity. Dr. Harris stated that
appellant did not have greater than the 32 percent left arm impairment previously addressed.
In decisions dated January 11, 2008, the Office denied a schedule award for appellant’s
right arm. It found the medical evidence was insufficient to establish any permanent impairment
due to his accepted claims. The Office granted a schedule award for an additional nine percent

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impairment to his left arm. The period of the award was from March 1 to September 13, 2006.
The Office noted that appellant had 32 percent total left upper extremity impairment and
previously received awards for 23 percent impairment. Therefore, appellant was entitled to the
difference of nine percent.
In an appeal request form dated February 8, 2008, postmarked March 6, 2008 and date
stamped as received March 11, 2008, appellant requested an oral hearing before an Office
hearing representative.
By decision dated May 6, 2008, the Office Branch of Hearings and Review denied
appellant’s request as untimely. It found that his claim could be addressed through the
reconsideration process.3
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulations,5 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)6 has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.
No schedule award is payable for a member, function or organ of the body not specified
in the Act or the implementing regulations.7 Neither the Act nor the Office’s regulations provide
for the payment of a schedule award for permanent loss of use of the back or the body as a
whole.8 The Board notes that section 8101(2) specifically excludes the back from the definition
of organ.9 However, a claimant may be entitled to a schedule award for permanent impairment

3

The Board notes that, following the May 6, 2008 decision, the Office received additional evidence. However,
the Board may not consider new evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c); J.T., 59 ECAB
___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27,
2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

7

See Joseph Lawrence, Jr., supra note 6; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB
1287 (1989).
8

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

9

See 5 U.S.C. § 8101(20). See also Phyllis F. Cundiff, 52 ECAB 439 (2001); Jay K. Tomokiyo, 51 ECAB
361 (2000).

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to an upper or lower extremity even though the cause of the impairment originated in the neck,
shoulders or spine.
ANALYSIS -- ISSUE 1
On appeal, appellant contends that he should have received a schedule award for the full
12 percent impairment rated by Dr. Harris in 2006. However, in light of the prior schedule
awards granted for impairment to his left arm, he is not entitled to an award in that amount.
The Office accepted left shoulder adhesive capsulitis and left elbow lateral epicondylitis
as a result of the April 28, 2003 employment injury. It also accepted herniated discs at C5-6 and
C6-7 as a result of a January 5, 2005 employment injury. Appellant initially received a schedule
award of four percent impairment to the left arm based on loss of range of motion to the shoulder
and sensory loss to the shoulder and elbow. Following remand of the case, he was also rated
with impairment of 20 percent based on loss of grip strength.10 These impairment ratings, when
combined by Dr. Simpson on June 13, 2005, totaled 23 percent. Appellant’s schedule award of
July 20, 2005 compensated him for the additional 19 percent impairment to his left arm. This
decision took into account the prior schedule award of four percent.
The present appeal is based on appellant’s contention of increased impairment to his left
upper extremity. Dr. Harris, on October 25, 2006, rated impairment to the arm based on sensory
and motor loss from the C7 nerve root. As noted, he was found to have an additional 12 percent
impairment to the upper extremity. This does not mean, as appellant’s contends on appeal, that
he is entitled to the full 12 percent rating based on C7 nerve dysfunction. Rather, this rating
must be combined with the impairments to the arm as represented in the prior schedule awards
he received. This was addressed by Dr. Harris in a June 9, 2007 report. Appellant previously
received two schedule awards for a total 23 percent impairment. Dr. Harris noted that, by using
the Combined Values Chart, 12 percent (based on C7 nerve sensory and motor loss) combined
with 23 percent (based on loss of shoulder range of motion, axillary and radial nerve sensory loss
and grip strength) totaled 32 percent.
Appellant previously received schedule awards for 23 percent impairment of his left arm.
He was therefore entitled to the difference between the current rating, 32 percent and the prior
awards. Subtracting 23 percent from 32 percent is 9 percent, the award granted by the Office on
January 11, 2008. There is no medical evidence establishing greater impairment of his left arm.
The Board will affirm the schedule impairment rating for appellant’s left upper extremity.
LEGAL PRECEDENT -- ISSUE 2
The Act11 provides compensation for both disability and physical impairment. Disability
means the incapacity of an employee, because of an employment injury, to earn the wages the
10

The Board notes that the A.M.A., Guides provide at Chapter 16.8, page 508, that loss of strength “cannot be
rated in the presence of decreased motion” that prevents effective application of maximal force in the region being
evaluated.
11

5 U.S.C. §§ 8101-8193.

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employee was receiving at the time of injury.12 In such cases, the Act compensates an employee
for loss of wage-earning capacity. For permanent physical impairment section 8107
compensates an employee under the schedule for loss of use of certain specified members of the
body, regardless of the employee’s ability to earn wages.13
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence. An employee has the burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of his or her employment injury.14
This is a medical issue and must be support by probative medical opinion evidence. The
claimant must submit a rationalized medical opinion that supports impairment caused by the
accepted employment injury or condition.15 The medical opinion must be based on a complete
factual and medical background, an accurate history of the claimant’s employment injury and an
explanation describing the impairment.16
ANALYSIS -- ISSUE 2
On January 11, 2008 the Office denied appellant’s claim for a schedule award for his
right arm, finding that the medical evidence failed to establish that he sustained permanent
impairment to that extremity. Appellant was referred for examination to Dr. Reddy. On
October 6, 2006 Dr. Reddy diagnosed left C7 cervical radiculopathy, which he attributed to the
accepted injury. He did not make any diagnosis of impairment to the right upper extremity.
Appellant submitted a June 13, 2007 treatment record from Dr. Rao, an attending
physician, who noted that appellant had complaints regarding his right upper extremity, but
provided no findings sufficient on which to base a schedule award. Dr. Rao did not address the
issue of whether appellant sustained any permanent impairment to his right arm due to the
accepted conditions.17 He did not list any findings from physical examination or diagnostic
testing that could be used by an Office medical adviser to rate permanent impairment.
On August 27, 2007 Dr. Harris addressed the deficiencies in the medical evidence. He
advised that the report of Dr. Rao did not provide objective support for any right upper extremity
impairment. The Board notes that Dr. Harris properly reviewed the medical evidence of record
12

C.S., 59 ECAB ___ (Docket No. 08-736, issued September 3, 2008); Lyle E. Dayberry, 49 ECAB 369 (1998).

13

Renee M. Straubinger, 51 ECAB 667 (2000); see also B.K., 59 ECAB ___ (Docket No. 07-1545, issued
December 3, 2007).
14

See D.H., 58 ECAB ___ (Docket No. 06-2160, issued February 12, 2007); Veronica Williams, 56 ECAB
367 (2005).
15

Manuel Gill, 52 ECAB 282 (2001).

16

Yvonne R. McGinnis, 50 ECAB 272 (1999).

17

See E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007) (to establish entitlement to workers’
compensation benefits, a claimant must submit an affirmative opinion on causal relationship from a physician who
supports the opinion with sound medical reasoning).

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and found that it did not establish permanent impairment to appellant’s right arm pursuant to the
A.M.A., Guides. The Office evaluates schedule award claims pursuant to the standards set forth
in the A.M.A., Guides. Appellant has the burden of proof to submit medical evidence supporting
that he sustained impairment to the right arm.18 As such evidence has not been submitted, the
Board finds that he is not entitled to a schedule award for his right upper extremity.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of an Office final
decision.19 Aclaimant is not entitled to a hearing as a matter of right if the request is not made
within 30 days of the date of the decision as determined by the postmark of the request.20 The
Office has discretion, however, to grant or deny a request that is made after this 30-day period.21
In such a case, it will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.22
ANALYSIS -- ISSUE 3
The Office issued decisions concerning appellant’s right and left upper extremities on
January 11, 2008. Appellant’s request for a hearing before an Office hearing representative was
dated February 8, 2008; however, it was not postmarked until March 6, 2008. The date of filing
of his hearing request is determined by the date of the postmark.23 His March 6, 2008 hearing
request was made more than 30 days after the date of the Office’s January 11, 2008 decisions.
Therefore, appellant was not entitled to a hearing as a matter of right.
The Office has the discretionary authority to grant a hearing even though a claimant is
not entitled as a matter of right. In its May 6, 2008 decision, the Office properly exercised its
discretion. It considered the issues involved and had denied appellant’s request for a review of
the written record on the basis that his claim could be adequately addressed through the
reconsideration process and the submission of additional evidence. The Board has held that the
only limitation on the Office’s authority is reasonableness. Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment or actions

18

See D.H., supra note 14; Annette M. Dent, 44 ECAB 403 (1993).

19

5 U.S.C. § 812(b)(2). See A.B., 58 ECAB ___ (Docket No. 07-387, issued June 4, 2007).

20

20 C.F.R. § 10.616(b).

21

Hubert Jones, Jr., 57 ECAB 467 (2006).

22

Teresa M. Valle, 57 ECAB 542 (2006).

23

See N.M., 59 ECAB ___ (Docket No. 07-1432, issued May 5, 2008) (a hearing request must be sent within
30 days of the date of the decision for which a hearing is sought as determined by postmark or other carrier’s date
marking.

7

taken which are contrary to both logic and probable deduction from established facts.24 In the
present case, the evidence did not abuse its discretion in denying a discretionary hearing.
CONCLUSION
The Board finds that appellant has no more than 32 percent impairment of the left arm,
for which he received schedule awards. The amounts paid under the awards properly accounted
for the combined impairments for which he has been rated. The Board finds that the Office
properly denied his claim for a schedule award for his right upper extremity, as appellant failed
to establish permanent impairment to that member. The Board finds that the Office properly
denied appellant’s request for an oral hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the May 6 and January 11, 2008 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: August 11, 2009
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

24

Teresa M. Valle, supra note 22; Daniel J. Perea, 42 ECAB 214 (1990).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATIONS & CUSTOMS
ENFORCEMENT, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 13-2062
Issued: February 5, 2014

Case Submitted on the Record

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

JURISDICTION
On September 9, 2013 appellant, through her attorney, filed a timely appeal from an
April 25, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on June 30, 2011 in the performance of
duty.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated February 5, 2013,
the Board affirmed a June 11, 2012 decision finding that appellant had not established that she
1

5 U.S.C. § 8101 et seq.

sustained food poisoning after eating a burrito at work on June 30, 2011.2 The Board found that
the medical evidence was insufficient to show that she sustained a diagnosed condition caused or
aggravated by the accepted employment incident. The facts and circumstances as set forth in the
prior decision are hereby incorporated by reference.
On February 19, 2013 appellant, through her attorney, requested reconsideration. He
contended that the newly submitted December 9, 2011 medical report from Dr. Rudolph
Bedford, a Board-certified internist, established that she sustained an injury in the performance
of duty. He noted that a claimant is entitled to compensation if work factors aggravated a
preexisting condition during the period of the aggravation.
In a report dated December 9, 2011, Dr. Bedford evaluated appellant for “marked
abdominal bloating and diarrhea with associated fatigue.” He related:
“[Appellant] was in her usual state of good health until June of 2011 after eating a
burrito which she claims was green with what she believes was a fungus. Within
24 hours she began experiencing diarrhea having upwards of [five to six] bowel
movements a day along with a gnawing abdominal discomfort which has
persisted. She continues to have upper to [four] loose bowel movements daily
with marked abdominal bloating.”
Dr. Bedford noted that a colonscopy and upper endoscopy were negative but that she “apparently
has H. [Helicobactor] Pylori gastritis which has not been treated secondary to an allergic reaction
to one of the antibiotics that she took for three days.” He opined that appellant had “symptoms
consistent with likely bacterial overgrowth secondary to food poisoning.” Dr. Bedford stated,
“She [has] not been tested for bacterial overgrowth. These symptoms may also be a
manifestation of postinfectious irritable bowel like syndrome (dysmotility process). Other
thoughts include gastrointestinal symptoms secondary to hypothyroidism.” Dr. Bedford
indicated that food poisoning increased the risk of developing irritable bowel syndrome and
related, “It is thought infection with food borne pathogens alters the function of the gut nervous
system, making it more sensitive, while also causing a shift in the immune system that result[s]
in increased amounts of inflammatory chemicals. Disturbances in the gut microflora may also
play a role.” Dr. Bedford recommended further diagnostic studies.
By decision dated April 25, 2013, OWCP denied modification of its February 5, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including: that the individual is an “employee of the United States”
2

Docket No. 12-1956 (issued February 5, 2013). On June 30, 2011 appellant, then a 59-year-old enforcement
and removal agent, filed a traumatic injury claim alleging that she experienced nausea and stomach pain on that date
after eating a burrito from the employing establishment’s snack bar. In decisions dated November 17, 2011 and
June 11, 2012, OWCP denied the claim after finding that she did not establish a medical condition due to the
accepted employment incident.
3

5 U.S.C. § 8101 et seq.

2

within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.8
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the claimant,10 must
be one of reasonable medical certainty11 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.12
ANALYSIS
On prior appeal the Board found that appellant had not submitted sufficient medical
evidence to establish that she sustained a diagnosed condition as a result of eating a burrito at
work on June 30, 2011. Appellant requested reconsideration based on the December 9, 2011
report from Dr. Bedford.
On December 9, 2011 Dr. Bedford discussed appellant’s history of experiencing diarrhea
and abdominal pain and bloating after eating a burrito in June 2011 that was green with a
suspected fungus. He noted that objective studies apparently showed H. Pylori gastritis that had
4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

9

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

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, supra note 7.

11

John W. Montoya, supra note 9.

12

Judy C. Rogers, 54 ECAB 693 (2003).

3

not been completely treated with antibiotics due to an allergic reaction. Dr. Bedford found that
appellant had symptoms that were “consistent with likely bacterial overgrowth secondary to food
poisoning.” He opined that other possibilities included postinfections irritable bowel syndrome
or hypothyroidism. Dr. Bedford explained the mechanism by which food poisoning generally
increased the risk of irritable bowel syndrome. He did not, however, provide a definite diagnosis
or fully explain how eating a burrito on June 30, 2011 caused or aggravated appellant’s
condition. Without a firm diagnosis supported by medical rationale, the report is of little
probative value.13 Further, while Dr. Bedford described how food poisoning increased the
chance of irritable bowel syndrome, his opinion was general in nature rather than specific to
appellant, and thus of diminished probative value.14 In the absence of rationalized medical
opinion evidence explaining how the June 30, 2011 work incident resulted in a specific
diagnosed condition, appellant has not met her burden of proof to establish an injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on June 30,
2011 in the performance of duty.

13

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
14

See D.G., Docket No. 11-255 (issued August 10, 2011); Melvina Jackson, 38 ECAB 443 (1988) (a medical
opinion is of limited probative value when it relies upon statements of general application and is not addressed to the
particular circumstances of the case at hand).

4

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINSTRATION MEDICAL
CENTER, Baltimore, MD, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-272
Issued: September 3, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant, through his attorney, filed a timely appeal from the
July 30, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied
his schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s April 27, 2004 employment injury caused medial and
lateral meniscal tears in his right knee, entitling him to a schedule award for permanent
impairment.
FACTUAL HISTORY
On April 27, 2004 appellant, then a 47-year-old patient services assistant, sustained an
injury in the performance of duty when he struck his right knee on an open file cabinet drawer.
Examination at the employer’s health unit revealed no abnormal findings. An x-ray showed a

small effusion consistent with bruising anterior to the patella. No fracture was seen. A repeat
x-ray on May 6, 2004 showed a normal study “with no evidence of recent traumatic pathology
noted.” Joint spacing and soft tissues were normal.
Appellant complained of increasing right knee symptoms since May 10, 2004. He stated
there was increase instability or laxity while walking on May 12, 2004. Medications were not
alleviating his pain. Appellant began to use a cane for ambulation. Physical examination on
May 14, 2004 revealed moderate tenderness along the lateral line of the patella. There was
increased tenderness with flexion and extension of the knee joint with no effusion. The Apley’s
distraction test was positive. Appellant received a diagnosis of right knee sprain/strain “which
appears to be worsening.”
Appellant returned to full duty on June 6, 2004. On June 14, 2004 the Office accepted
his claim for sprain and strain of unspecified site of right knee, resolved.
On November 29, 2006 appellant filed a claim for a schedule award. The employer
controverted the claim and noted that appellant was submitting medical documentation relating
to a 1988 injury that occurred before his federal employment.
On September 6, 2006 Dr. Robert W. Macht, a general surgeon, noted that appellant
injured his back and right leg on November 14, 1988 when a 4 x 4 fell and struck him. He noted
that appellant’s knee gave way in February 1999. Magnetic resonance imaging (MRI) scans of
his knee were obtained in August 2000 and March 2001. Dr. Macht made no mention of
appellant’s striking his right knee on a file cabinet drawer on April 27, 2004. Appellant
complained of severe constant pain about the right knee, which “is weak, swells, cracks, gives
way and pops” and aches in damp weather. He stopped running, jumping, sports, dancing, using
ladders, kneeling and squatting. Appellant could not walk or stand as much as before. He had
difficulty using stairs. X-rays showed hypertrophic changes about the tibial tubercles.
Dr. Macht reported that appellant had a 75 percent permanent impairment of his right leg as a
result of the November 1988 accident injuring his right leg and knee.
The Office denied appellant’s schedule award claim on August 10, 2007.
Thereafter the Office received an August 2, 2007 report from Dr. Macht, who noted that
appellant struck his right knee against a metal partition on April 27, 2004 causing injury.
Appellant currently complained of severe constant right knee pain. His knee “is weak, swells,
gives way and pops” and aches in damp and cold weather. Appellant stopped jumping, kneeling,
squatting, running, driving, using ladders, dancing and sports. He had problems with prolonged
walking and standing and difficulty using stairs. “There was a history of prior injury to his right
knee and prior surgery,” Dr. Macht reported. An MRI scan in November 2006 showed a torn
lateral and medial meniscus. Dr. Macht found it medically probable that appellant tore both on
April 27, 2004 and determined that appellant had a 10 percent permanent impairment of his right
lower extremity as a result of the April 27, 2004 employment injury. He explained that the
remainder of appellant’s 75 percent impairment preexist the April 27, 2004 injury.
On May 16, 2008 the Office reviewed the merits of appellant’s claim and denied
modification of its prior decision. It found that Dr. Macht based his opinion on an inaccurate

2

history of the April 27, 2004 injury, which it accepted for a resolved sprain and strain. The
Office noted that Dr. Macht addressed previous nonwork issues and offered no explanation of
the impact of the April 27, 2004 employment injury on appellant’s preexisting conditions.
Dr. Macht offered no rationale as to how the April 27, 2004 employment injury resulted in dual
meniscal tears.
On July 30, 2009 the Office again reviewed the merits of appellant’s claim and denied
modification of its prior decision. It noted that appellant had submitted no additional medical
reports discussing an impairment rating of the right lower extremity or how his present right
knee condition was related to the April 27, 2004 work injury.
On appeal appellant’s representative argues that it is appropriate for an impairment rating
to include preexisting conditions. “While it is clear that appellant had significant preexisting
impairment, if he has any impairment due to the 2004 injury that must be rated.” He asks the
Board to remand the case for a proper impairment evaluation by an Office referral physician.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between his current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.4 Medical conclusions unsupported by rationale are of little
probative value.5
Section 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.6 A claimant seeking a schedule
award under section 8107 has the burden to establish that he sustained a permanent impairment
1

5 U.S.C. §§ 8101-8193.

2

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

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

5

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

6

5 U.S.C. § 8107(a).

3

of a scheduled member or function of the body as a result of an injury sustained while in the
performance of duty.7
ANALYSIS
The Office accepts that on April 27, 2004 appellant struck his right knee on an open file
cabinet drawer while in the performance of his federal duties. It also accepts that this incident
caused a sprain and strain of an unspecified site of the right knee, an injury that resolved by
June 14, 2004. Appellant claims something more. He claims that the April 27, 2004 incident
has caused permanent impairment to his right lower extremity. Appellant, therefore, bears the
burden of proof to establish that the April 27, 2004 incident caused a medical condition that
permanently impaired his right lower extremity.
Appellant submitted the August 2, 2008 report from Dr. Macht, his surgeon, who noted
that appellant struck his right knee against a metal partition on April 27, 2004.8 Dr. Macht noted
that a November 2006 MRI scan showed a torn medial and lateral meniscus and he concluded
that it was medically probable that the April 27, 2004 incident caused both tears. He offered no
medical rationale. Appellant failed to offer an explanation from a physiological perspective how
striking one’s knee against a file cabinet drawer can tear a meniscus. Dr. Macht must explain
how it is medically reasonable to expect meniscal tears from the mechanism of injury described.
Dr. Macht must also explain how he was able to determine that the meniscal tears shown
on the November 2006 MRI scan arose from the April 27, 2004 work incident. However,
appellant has a history that is significant for previous knee injury and surgery, Dr. Macht must
offer sound medical reasoning to rule out preexisting tears. He must also explain how these tears
did not arise after the April 27, 2004 incident.
Dr. Macht presented little or no medical rationale to support his opinion on the causal
relationship between the April 27, 2004 work incident and the meniscal tears shown on the
November 2006 MRI scan, the Board finds that his opinion carries little probative weight to
support appellant’s claim for a schedule award.9 Appellant has not met his burden of proof to
establish the element of causal relationship that is necessary to proceed with his schedule award
claim. The Board will therefore affirm the Office’s June 30, 2009 decision denying that claim.
Appellant’s representative correctly argues on appeal that in determining entitlement to a
schedule award, preexisting impairments to the scheduled member are to be included.10 If there
7

See, e.g., Ernest P. Govednik, 27 ECAB 77 (1975) (no medical evidence that the employment injury caused the
claimant to have a permanent loss of use of a leg or any other member of the body specified in the schedule).
8

To be accurate, he struck his knee against an open file cabinet drawer, but the basic mechanism of injury is
consistent with the facts.
9

Incidentally, the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001), Table 17-33, page 546, assigns a 10 percent impairment of the lower extremity for partial medial and lateral
meniscectomy, not for medial and lateral meniscal tears per se.
10

Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB 247 (1983). See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7.a(2) (January 2010) for two exceptions.

4

is any impairment due to the 2004 injury, preexisting conditions must be considered in the
rating.” That is the question, whether appellant has any impairment “due to the 2004 injury.”
He has not met his burden of proof on that issue.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
April 27, 2004 employment injury caused medial and lateral meniscal tears in his right knee.
The Office, therefore, properly denied his schedule award claim.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 21-0455
Issued: February 28, 2022

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 February 2, 2021 appellant filed a timely appeal from a January 7, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $64,756.00 for the period April 1, 2016 through
September 12, 2020, for which she was without fault, because she concurrently received FECA
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 7, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$400.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On March 12, 2001 appellant, then a 47-year-old modified mail carrier, filed an
occupational disease claim (Form CA-2) alleging that factors of her federal employment
aggravated her knee osteoarthritis on or about February 14, 2000. OWCP accepted the claim for
permanent aggravation of bilateral osteoarthritis of the lower legs. It paid appellant wage-loss
compensation on the supplemental rolls as of June 25, 2002 and on the periodic rolls as of
September 8, 2002. A notification of personnel action PS Form 50 dated March 3, 2003 indicated
that her retirement system coverage was under the Federal Employees Retirement System (FERS).
On February 26 and April 29, 2020 OWCP forwarded a FERS/SSA dual benefits form to
SSA to obtain information regarding appellant’s receipt of SSA benefits.
On July 13, 2020 OWCP received a completed FERS/SSA dual benefits form from SSA,
which reported that appellant had been in receipt of SSA age-related retirement benefits since
April 2016. SSA reported that: beginning April 2016, appellant’s monthly SSA benefit rate with
FERS was $1,265.00 and without FERS was $148.90; beginning December 2016, appellant’s
monthly SSA benefit rate with FERS was $1,269.00 and without FERS was $149.20; beginning
December 2017, appellant’s monthly SSA benefit rate with FERS was $1,294.00 and without
FERS was $152.20; beginning December 2018, appellant’s monthly SSA benefit rate with FERS
was $1,331.00 and without FERS was $156.40; beginning December 2019, appellant’s monthly
SSA benefit rate with FERS was $1,352.00 and without FERS was $158.90; and beginning
January 2020, appellant’s monthly SSA benefit rate with FERS was $1,773.50 and without FERS
was $208.00.
The record reflects that as of September 13, 2020 appellant received a net compensation
payment of $1,363.96 every 28 days.
OWCP completed a FERS offset overpayment calculation worksheet on
September 17, 2020. It calculated the overpayment amount by determining the daily FERS offset
amount and multiplying that amount by the number of days for the period April 1, 2016 through
September 12, 2020. The form indicated that, from April 16 through November 30, 2016,
appellant received an overpayment of $8,977.86, from December 1, 2016 through November 30,
2017, she received an overpayment of $13,474.52, from December 1, 2017 through November 30,
2018, she received an overpayment of $13,739.24, from December 1, 2018 through November 30,
2019, she received an overpayment of $14,133.92, from December 1 through 31, 2019, she
received an overpayment of $1,219.32, and from January 1 through September 12, 2020, she
received an overpayment of $13,212.13, for a total overpayment of $64,756.99.
On September 18, 2020 OWCP issued a preliminary overpayment determination finding
that an overpayment of compensation in the amount of $64,756.99 had been created. It explained
that the overpayment occurred because appellant’s SSA age-related retirement benefits that she

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received from April 1, 2016 through September 12, 2020 were partially based on credits earned
while working for the Federal Government, and that this portion of h er SSA benefit constituted a
prohibited dual benefit. OWCP found that she was without fault in the creation of the
overpayment. It requested that appellant complete an enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documentation, including income
tax returns, bank account statements, bills and cancelled checks, pay slips, and any other records
to support her reported income and expenses. Additionally, OWCP provided an overpayment
action request form and advised her that, within 30 days of the date of the letter, she could request
a final decision based on the written record or request a prerecoupment hearing.
On the overpayment action request form dated October 4, 2020, appellant requested that
OWCP make a decision based on the written evidence regarding possible waiver of the
overpayment. She requested waiver of recovery of the overpayment, explaining that it would be
very difficult for her to pay back any money. On a completed Form OWCP-20, appellant indicated
that her total monthly income was $3,920.00. She noted that her monthly expenses were $3,550.00
for rent or mortgage, $300.00 for food, $100.00 for clothing, $450.00 for utilities, and $400.00 for
other expenses. Appellant indicated that she also owned a rental house for which she paid a
monthly mortgage of $1,117.00, including insurance, taxes, and repairs. She also indicated that
she had $1,600.00 in assets. Supporting financial documentation was not received.
By decision dated January 7, 2021, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$64,756.00, for the period April 1, 2016 through September 12, 2020, because it had failed to
offset her compensation payments by the portion of her SSA age-related retirement benefits that
were attributable to federal service. It further found that she was without fault in the creation of
the overpayment, but denied waiver of recovery of the overpayment because the evidence of record
was insufficient to establish that recovery of an overpayment would defeat the purpose of FECA
or would be against equity and good conscience. OWCP required recovery of the overpayment by
deducting $400.00 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 3 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 4 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled. 5

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).

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Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 6 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $64,756.00, for the period April 1, 2016 through September 12,
2020, as she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to federal service for the same period.8 The evidence
of record establishes that appellant had concurrently received wage-loss compensation benefits
and SSA age-related retirement benefits that were attributable to her federal service from April 1,
2016 through September 12, 2020. Consequently, the fact of the overpayment has been
established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amounts of SSA age-related retirement
benefits that were attributable to federal service. SSA provided its rate with FERS and without
FERS during the specific period April 1, 2016 through September 12, 2020. OWCP provided its
calculations for each relevant period based on SSA’s worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period April 1, 2016 through September 12, 2020 and finds that an overpayment of compensation
in the amount of $64,756.00 has been established.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 9
6

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

7

FECA Bulletin No. 97-09 (issued February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

8

Supra note 6; see D.W., Docket No. 20-1533 (issued May 27, 2021); M.R., Docket No. 20-0427 (issued
October 30, 2020); A.C., Docket No. 18-1550 (issued February 21, 2019); N.B., Docket No. 18-0795 (issued
January 4, 2019).
9

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020).

4

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines. 10
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 11 Additionally, recovery of an
overpayment is considered to be against equity and good con science when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 12
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 13 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 15
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience because she did not provide
any necessary supporting financial information. In its preliminary overpayment determination
dated September 18, 2020, OWCP explained the importance of providing the completed
overpayment questionnaire and supporting financial documentation, including copies of income
10

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

11

20 C.F.R. § 10.436(a)-(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a.(2) (September 2020).
12

Id. at § 10.437(a)(b).

13

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

14

Id. at § 10.438(b).

15

Id. at § 10.436.

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tax returns, bank account statements, bills, pay slips, and any other records to su pport income,
expenses, and assets. While appellant completed the Form OWCP-20, she did not provide
documentation supporting her reported income, expenses, or assets. As she did not submit the
information required under section 10.438 of OWCP’s regulations, which was necessary to
determine her eligibility for waiver, OWCP properly denied waiver of recovery of the
overpayment.16
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 17
Section 10.441(a) of OWCP s regulations 18 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”19
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly required recovery of the overpayment by
deducting $400.00 from appellant’s continuing compensation payments every 28 days.
The record reflects that appellant received FECA compensation benefits on the periodic
rolls in the net amount of $1,363.96 every 28 days as of September 13, 2020. While she completed
the Form OWCP-20, she did not provide documentation supporting her reported income, expenses,
or assets.
OWCP’s procedures provide that, if no response to the preliminary overpayment
determination is received, which provides supporting financial documentation, OWCP should set
the rate of recovery at 25 percent of the 28-day net compensation amount until the balance of the
overpayment is paid in full. 20 The Board notes that 25 percent of $1,363.96 is $341.00. The Board
therefore finds that OWCP abused its discretion by deducting $400.00 from appellant’s continuing
compensation payments, every 28 days.
16

D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued March 2, 2017).

17

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

18

Id. at § 10.441(a).

19

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

20

Supra note 11 at Chapter 6.500.8(c)(1) (September 2018); M.W., Docket No. 20-1107 (issued March 17, 2021).

6

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $64,756.99, for the period April 1, 2016 through September 18,
2020, as she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment. The Board also finds that OWCP improperly required recovery
of the overpayment by deducting $400.00 from appellant’s continuing compensation payments
every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: February 28, 2022
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Brownsville, TX, Employer
__________________________________________

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

Docket No. 10-1606
Issued: February 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 1, 2010 appellant filed a timely appeal from the April 9, 2010 merit decision of
the Office of Workers’ Compensation Programs which granted a schedule award for 35 percent
binaural hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than 35 percent binaural (both ears) hearing loss
for which he received a schedule award.
On appeal, appellant contends that his left ear has 60 percent monaural hearing loss and
his right ear has 35 percent monaural hearing loss and he “was awarded compensation of 35
percent and not the 60 percent monaural hearing loss.”

FACTUAL HISTORY
On June 19, 2009 appellant, then a 56-year-old supervisory inspector, filed an
occupational disease claim alleging that he sustained hearing loss in both ears due to factors of
his federal employment. He became aware of his hearing loss in January 2007 and first realized
it was caused or aggravated by his federal employment in April 2009.
By letter dated July 6, 2009, the Office advised appellant of the evidence needed to
establish his claim. In a letter of the same date, it requested that the employing establishment
address the sources of appellant’s noise exposure, decibel and frequency level, period of
exposure and hearing protection provided.
By letter dated September 14, 2009, the Office referred appellant and a statement of
accepted facts to Dr. Gregory S. Rowin, an otolaryngologist, for an otologic examination and an
audiological evaluation. Dr. Rowin performed an otologic evaluation of appellant on
September 29, 2009 and audiometric testing was obtained on his behalf that date. Testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the following: right
ear 35, 40, 50 and 55 decibels; left ear 60, 50, 70 and 75 decibels. Dr. Rowin determined that
appellant sustained chronic asymmetric neurosensory hearing loss, left ear greater than right ear,
secondary to loud noise exposure. He noted that the loss was in excess of that expected from
presbycusis and recommended a hearing aid evaluation.
On October 30, 2009 an Office medical adviser reviewed Dr. Rowin’s report and the
audiometric test of September 29, 2009. He concluded that, in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides), appellant had 34.7 percent binaural hearing loss. The Office medical adviser
noted that the date of maximum medical improvement was September 29, 2009.
By decision dated November 5, 2009, the Office accepted that appellant sustained a
bilateral hearing loss, with the left worse than right due to workplace exposure to noise. On
March 2, 2010 the Office authorized hearing aids.
By decision dated April 9, 2010, the Office granted appellant a schedule award for 35
percent binaural (both) hearing loss. The period of the award was from September 29, 2009 to
January 31, 2011 to last 70 weeks.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act (the Act)1
and its implementing regulations set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. 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
matter 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
1

5 U.S.C. §§ 8101-8193.

2

uniform standards applicable to all claimants. The A.M.A., Guides (6th ed. 2009), has been
adopted by the Office for evaluating schedule losses and the Board has concurred in such
adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.3
ANALYSIS
Dr. Rowin, the referral physician concluded that appellant sustained a chronic
asymmetric neurosensory hearing loss due to noise exposure and that the loss was greater in the
right ear than in the left.
The Board finds that the report of Dr. Rowin conforms to applicable criteria and
constitutes the weight of the medical evidence. The Office medical adviser reviewed
Dr. Rowin’s report and audiometric findings and properly applied the Office’s standardized
procedures to finding that appellant had 35 percent binaural hearing loss. On October 30, 2009
he reviewed Dr. Rowin’s report and audiometric findings. The September 29, 2009 audiogram
recorded frequency levels at the 500, 1,000, 2,000 and 3,000 cycles per second levels and
revealed decibel losses of 35, 40, 50 and 55 respectively in the right ear for a total decibel loss of
180 on the right. This amount was divided by 4 which resulted in an average loss of 45 decibels.
The medical adviser subtracted the 25 decibel fence to equal 20 decibels. He multiplied 20
decibels by the established factor of 1.5 to result in 30 percent monaural hearing loss for the right
ear. The medical adviser followed the same procedure on the left, noting that the test results at
the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 60,
50, 70 and 75 decibels respectively, for a total of 255 decibels. He divided 255 by 4, for an
average hearing loss of 63.75 decibels, and subtracted the 25 decibel fence to equal 38.75
decibels. The medical adviser multiplied 38.75 by the established factor of 1.5, for a 58.125
percent monaural hearing loss for the left ear. He then multiplied the 30 percent monaural
hearing loss for the left ear by 5, as it was the lesser loss, to find a product of 150. As the
procedures provide, the Office medical adviser then added the 58.125 to the 150 percent hearing
loss for the right ear, to obtain a total of 208.125 which was divided by 6 to rate a binaural
hearing loss of 34.7 percent. The medical evidence of record establishes that appellant has 35

2

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

3

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

3

percent binaural hearing loss.4 Appellant did not submit any medical evidence to establish more
than 35 percent binaural hearing loss. The Board finds that the schedule award for 35 percent
binaural hearing loss was proper.
A schedule provides for payment of compensation for a specific number of weeks as
prescribed by the statute.5 With regard to appellant’s contention that he was entitled to a
schedule award for greater than 35 percent binaural loss of hearing, section 8107(c)(13)(A) of
the Act provides that for 100 percent loss of hearing in one ear, a claimant is entitled to 52 weeks
of compensation.6 Section 8107(c)(13)(B) provides that for 100 percent loss of hearing of both
ears, a claimant is entitled to 200 weeks of compensation.7 As appellant sustained 35 percent
binaural hearing loss, he is entitled to 70 weeks of compensation, as the Office awarded. He is
entitled to no more under the Act.8
CONCLUSION
The Board finds that appellant has no more than 35 percent binaural hearing loss, for
which he received a schedule award.

4

S.G., 58 ECAB 383 (2007).

5

5 U.S.C. § 8107.

6

Id. at § 8107(c)(13)(A).

7

Id. at § 8107(c)(13)(B).

8

The Board notes that for his 30 percent right ear hearing loss, appellant would be entitled to 15.6 weeks of
compensation and, for his 58 percent left ear hearing loss, to 30.16 weeks of compensation, a total of 45.76 weeks.
Appellant is entitled to more compensation for his 35 percent binaural hearing loss (70 weeks) than he would be for
separate awards for his right and left ear loss of hearing.

4

ORDER
IT IS HEREBY ORDERED THAT the April 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5