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

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

Docket No. 06-1971
Issued: May 21, 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 August 23, 2006 appellant filed a timely appeal from a July 18, 2006 Office of
Workers’ Compensation Programs’ merit decision denying his claim for a back injury and an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUES
The issues on appeal are: (1) whether appellant has met his burden of proof in
establishing that he sustained a back injury in the performance of duty on April 20, 2005; and
(2) whether he has met his burden of proof in establishing that he developed an emotional
condition in the performance of duty.

FACTUAL HISTORY
On April 21, 2005 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim, Form CA-1, alleging that on April 20, 2005 he experienced stress at work which caused
back pain while in the performance of duty.1 He stopped work on April 20, 2005.
By letter dated September 22, 2005, the Office advised appellant of the factual and
medical evidence needed to establish his claim. It requested that appellant submit a physician’s
reasoned opinion addressing the relationship of his claimed conditions and specific employment
factors.
In an October 1, 2005 statement, appellant noted that on February 11, 2005 he requested
assistance in delivering his mail route because his medication caused him to be drowsy. Nancy
Carreras, his manager, denied his request. Thereafter, appellant filed an Equal Employment
Opportunity (EEO) complaint which was mediated on April 19, 2005. He alleged that on
April 20, 2005 he experienced emotional stress after David Weatherspoon, his supervisor,
approached him in a threatening manner to discuss allegations in his EEO complaint that he was
denied overtime. After this discussion, appellant returned to his job and experienced back pain
after performing duties that included bending and lifting mail containers and casing mail.
In an October 25, 2002 report, Dr. Sudha Sikri, a Board-certified family practitioner,
noted treating appellant for a left knee injury which occurred while he was working. Reports
from Dr. Eric G. Dawson, an orthopedic surgeon, dated November 5, 2002 to January 6, 2005,
addressed a left knee injury that occurred at work on October 25, 2002. He diagnosed left knee
chondromalacia, patella alta and patella tendinitis and advised that appellant could return to work
full time with restrictions. In disability certificates dated April 22 and May 3, 2005, Dr. Dawson
diagnosed lumbar discopathy with myelopathy and sciatica. He advised that appellant would be
totally disabled from April 20 to May 13, 2005. On May 9, 2005 Dr. Dawson diagnosed right
sciatica and advised that appellant could return to work limited duty on May 16, 2005. In a
report dated September 28, 2005, Dr. Dawson noted treating appellant on April 20, 2005 for a
lifting injury. He diagnosed sacroiliac sprain, sciatica and a low grade disc injury and initiated a
regimen of conservative care for six to eight weeks.
Appellant submitted treatment notes from Kaiser Permanente dated February 25, 2004 to
March 2, 2005, which noted treatment for recurrent low back pain from a military injury and
diagnosed lumbar strain with spasms. Reports from Dr. Howard M. Schulman, a clinical
psychologist, noted appellant’s treatment for anxiety associated with a urinary frequency
condition. Appellant submitted Veterans Administration (VA) Medical Center records
addressing treatment for gout, arthritis of the toes and anxiety associated with urinary frequency.
On February 24, 2005 Dr. Luis A. Gonzalez, a Board-certified internist, treated appellant for
gout and total loss of control of the anal sphincter. In a report dated April 20, 2005, Dr. Neil
Bien, a clinical psychologist, treated appellant for stress associated with urinary frequency and
incontinent bowel. Appellant submitted an EEO complaint dated April 25, 2005 which alleged
1

Appellant filed a claim for a knee injury which occurred at work on October 24, 2002 and which was accepted
by the Office for a left knee contusion in file number 25-2022645.

2

that he was wrongfully denied overtime by Ms. Carreras. On May 25, 2005 he was treated for
chronic low back pain and arthritis by Dr. Divya Schroff, an internist.
In a December 16, 2005 decision, the Office denied appellant’s claim for a back injury
and an emotional condition. It found that the evidence did not establish that he sustained an
injury on April 20, 2005. The Office found that the evidence was insufficient to establish that
appellant experienced the claimed incident on April 20, 2005.
On December 20, 2005 appellant requested an oral hearing which was held on
May 3, 2006. In a letter dated January 2, 2006, he noted that on April 20, 2005 he was casing
mail and lifting a mail container, which involved twisting and turning, when he experienced pain
in his lower back. Appellant also noted that on April 20, 2005 Mr. Weatherspoon approached
him in a threatening manner and questioned him about discussions which occurred in an EEO
mediation on April 19, 2005. He advised that the EEO mediation was confidential and
contended that Mr. Weatherspoon harassed and discriminated against him by obtaining the
confidential information and discussing it with him. Appellant alleged that his manager and
supervisor refused to assist him in filing a CA-1, CA-2 or CA-7 claim.
In a January 24, 2006 report, Dr. Dawson noted that appellant injured his back on
April 20, 2005 when he was lifting parcels and casing mail at work and sought treatment on
April 22, 2005. He noted findings upon physical examination of decreased range of motion of
the lumbar spine, muscle spasms, positive straight leg raises and sciatica irritability. Dr. Dawson
diagnosed lumbar discopathy with nerve impingement. In an accompanying duty status report
dated January 24, 2006, he advised that appellant could return to limited-duty work eight hours
per day subject to various restrictions. In reports dated February 22 to May 26, 2006,
Dr. Dawson treated him for pain, spasm and stiffness in the lower back extending to the leg. He
noted that the physical examination revealed sciatica and diagnosed lumbar discopathy with
impingement at L5. Dr. Dawson advised that appellant was totally disabled from work on
May 25, 2006.
In a decision dated July 18, 2006, the hearing representative affirmed the
December 16, 2005 decision.
LEGAL PRECEDENT -- ISSUE 1
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.”2 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.3
2

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

3

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

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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.4 In some traumatic injury cases this
component can be established by an employee’s uncontroverted statement on the Form CA-1.5
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and his subsequent course of
action.6 A consistent history of the injury as reported on medical reports, to the claimant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.7
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.8 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence,9 an employee has
not met this burden when there are inconsistencies in the evidence such as to cast serious doubt
upon the validity of the claim.10
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.11
ANALYSIS -- ISSUE 1
Appellant alleged that he injured his back on April 20, 2005 while at work casing mail.
However, the contemporaneous medical records make no mention of an employment-related
incident on that day. Rather, the first mention of an employment-related incident on
4

Elaine Pendleton, supra note 2.

5

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

6

Rex A. Lenk, 35 ECAB 253, 255 (1983).

7

Id. at 255-56.

8

Dorothy M. Kelsey, 32 ECAB 998 (1981).

9

Robert A. Gregory, 40 ECAB 478 (1989).

10

Joseph A. Fournier, 35 ECAB 1175 (1984).

11

See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983).

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April 20, 2005 is Dr. Dawson’s report of September 28, 2005, which was over five months after
the alleged event. The Board notes that, with an injury as alleged by appellant, it would be
reasonable to expect medical treatment with histories reflecting such an event within a few days
or weeks of the claimed injury. Additionally, there were no witnesses to the alleged incident.
These circumstances of lack of confirmation cast serious doubt on appellant’s prima facie claim.
There is no contemporaneous medical evidence supporting that a specific incident
occurred on April 20, 2005. The medical records closest to the date of the alleged incident
include disability certificates from Dr. Dawson dated April 22 and May 3, 2005. Dr. Dawson
diagnosed lumbar discopathy with myelopathy and sciatica and advised that appellant would be
totally disabled from April 20 to May 13, 2005. However, he failed to mention a work-related
incident on April 20, 2005. On May 9, 2005 Dr. Dawson diagnosed right sciatica and advised
that appellant could return to work limited duty on May 16, 2005; however, he failed to reference
a work-related incident on April 20, 2005. As noted, the first mention of an employment-related
incident in a medical report is in Dr. Dawson’s report of September 28, 2005. Dr. Dawson
diagnosed sacroiliac sprain, sciatica and a low grade disc injury and initiated a regimen of
conservative care for six to eight weeks; however, there was no treatment note in the record prior
to September 28, 2005 which mentions a work-related injury of April 20, 2005 nor is there any
reasonable explanation by Dr. Dawson as to why such claimed incident was not sooner reported.
Other reports from the VA Medical Center dated April 21 and 28, 2005 and a report from
Dr. Schroff dated May 25, 2005 noted appellant’s treatment for gout, arthritis of the toes, back
pain and anxiety associated with urinary frequency. The Kaiser treatment records also reflect
treatment prior to April 20, 2005 for recurrent low back pain attributed to military service. No
other medical reports from 2005 mention any incident or back injury sustained at work on
April 20, 2005.
Appellant has not satisfied the first component of fact of injury, establishing that he
actually experienced an employment incident on April 20, 2005. There are too many
inconsistencies in the evidence to accept that the incident occurred as alleged.
For these reasons, the Board finds that appellant has not established that the claimed
incident occurred as alleged. Consequently, appellant has not met his burden of proof in
establishing his back condition claim.
LEGAL PRECEDENT -- ISSUE 2
To establish his claim that he sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.12

12

Donna Faye Cardwell, 41 ECAB 730 (1990).

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Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,13 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Act.14 There are situations where an injury
or an illness has some connection with the employment but nevertheless does not come within
the concept or coverage under the Act.15 When an employee experiences emotional stress in
carrying out his employment duties, and the medical evidence establishes that the disability
resulted from his emotional reaction to such situation, the disability is generally regarded as due
to an injury arising out of and in the course of employment. This is true when the employee’s
disability results from his emotional reaction to a special assignment or other requirement
imposed by the employing establishment or by the nature of his work.16 There are situations
where an injury or an illness has some connection with the employment but nevertheless does
not come within the concept or coverage under the Act. Where the disability results from an
employee’s emotional reaction to his regular or specially assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of the Act. On the other
hand, the disability is not covered where it results from such factors as an employee’s fear of a
reduction-in-force or his frustration from not being permitted to work in a particular environment
or to hold a particular position.17
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.18 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.19
ANALYSIS -- ISSUE 2
Appellant alleged that he was harassed and discriminated against by his supervisor,
Mr. Weatherspoon, on April 20, 2005 when confronted about confidential discussions which
13

28 ECAB 125 (1976).

14

5 U.S.C. §§ 8101-8193.

15

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

16

Lillian Cutler, supra note 13.

17

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 13.
18

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

19

Id.

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occurred in an EEO mediation on April 19, 2005. To the extent that incidents alleged as
constituting harassment by a supervisor are established as occurring and arising from appellant’s
performance of his regular duties, these could constitute employment factors.20 However, for
harassment to give rise to a compensable disability under the Act, there must be evidence that
harassment did in fact occur. Mere perceptions of harassment are not compensable under the
Act.21
Appellant has not submitted sufficient evidence to establish that he was harassed or
retaliated against by Mr. Weatherspoon. He alleged that his supervisor made statements and
engaged in actions which he believed constituted harassment, but he provided no corroborating
evidence, such as witness statements, to establish that the statements actually were made or that
the actions actually occurred. The factual evidence fails to support appellant’s claim that he was
harassed by Mr. Weatherspoon.22 Thus, he has not established a compensable employment
factor with respect to these allegations.
Appellant alleged that on April 20, 2005 Mr. Weatherspoon approached him in a
threatening manner and questioned him about discussions which occurred in a confidential EEO
mediation on April 19, 2005. Appellant did not submit evidence or witness statements in support
of his allegation. General allegations of harassment are not sufficient23 and in this case appellant
has not submitted sufficient evidence to establish disparate treatment by his supervisor.24
Although he alleged that his supervisors engaged in actions which he believed constituted
harassment, appellant provided insufficient evidence to establish his allegations.25 Thus,
appellant has not established a compensable employment factor under the Act with respect to the
claimed harassment.
Appellant indicated that he filed an EEO claim for harassment and discrimination;
however, the Board further notes that grievances and EEO complaints, by themselves, do not
establish that workplace harassment or unfair treatment occurred.26 He submitted an EEO
complaint dated April 25, 2005 that summarized his pending EEO complaint for harassment
against Ms. Carreras. However, none of the information submitted establishes improper action
by the employing establishment with regard to appellant. The evidence regarding the EEO
matter does not establish a compensable employment factor under the Act.

20

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

21

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

22

See Michael A. Deas, 53 ECAB 208 (2001).

23

See Paul Trotman-Hall, 45 ECAB 229 (1993).

24

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
25

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
26

James E. Norris, 52 ECAB 93 (2000).

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Other allegations by appellant regarding his work assignments relate to administrative or
personnel actions. In Thomas D. McEuen,27 the Board held that an employee’s emotional
reaction to administrative actions or personnel matters taken by the employing establishment is
not covered under the Act as such matters pertain to procedures and requirements of the
employer and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under the Act would attach if the factual circumstances
surrounding the administrative or personnel action established error or abuse by the employing
establishment superiors in dealing with the claimant. Absent evidence of such error or abuse, the
resulting emotional condition must be considered self-generated and not employment generated.
In determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.28
Appellant alleged that his supervisors improperly denied his requests for overtime. The
Board notes that the handling of leave requests and attendance matters are generally related to
the employment, they are administrative functions of the employer and not duties of the
employee.29 Appellant has presented no corroborating evidence to support that the employing
establishment erred or acted abusively in this matter. The Board finds that the employing
establishment acted reasonably in this administrative matter and appellant has not established a
compensable factor of employment with respect to this allegation.
Finally, appellant alleged that Mr. Weatherspoon did not assist him in filing an
occupational disease claim, traumatic injury claim and a CA-7 claim for compensation. The
Board notes that the development of any condition related to such matters would not arise in the
performance of duty as the processing of compensation claims bears no relation to appellant’s
day-to-day or specially assigned duties.30 Appellant presented no corroborating evidence to
support that the employing establishment erred or acted abusively with regard to this matter. The
employing establishment acted reasonably in its administrative capacity. The Board finds that
appellant failed to establish a compensable factor pertaining to his allegation that the Office
failed to assist him in handling his compensation claim.31
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a back injury on
April 20, 2005 in the performance of duty, causally related to factors of his federal employment.
The Board further finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

27

See Thomas D. McEuen, supra note 17.

28

See Richard J. Dube, 42 ECAB 916, 920 (1991).

29

See Judy Kahn, 53 ECAB 321 (2002).

30

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

31

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the July 18, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 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
__________________________________________
P.C., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, San Diego, CA, Employer
__________________________________________

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

Docket No. 07-2347
Issued: April 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 17, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 26, 2007 nonmerit decision denying reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction only over the nonmerit denial
of reconsideration.
ISSUE
The issue is whether the Office properly determined that appellant’s May 13, 2007
request for a review of a prior wage-earning capacity determination constituted an untimely
request for reconsideration.
FACTUAL HISTORY
This is the second appeal in the present case. In a March 9, 2005 decision, the Board
affirmed an April 21, 2004 Office decision, which found that the constructed position of

customer service representative represented appellant’s wage-earning capacity.1 The facts and
circumstances of the case are set forth in the Board’s prior decision and incorporated herein by
reference.2
Appellant submitted treatment notes from Dr. Don Edward Miller, a clinical
psychologist, dated September 4, 2001 through October 15, 2005. Dr. Miller reviewed a history
of the work-related injury and diagnosed generalized anxiety disorder, major depressive disorder,
recurrent, severe without psychotic features and post-traumatic stress disorder. He referred
appellant to Dr. Lawrence Saben, a Board-certified psychiatrist, who treated appellant from
February 8, 2002 to September 21, 2004 for depression. Dr. Saben noted a history of appellant’s
work-related injury and subsequent treatment.
On March 1, 2007 appellant submitted a (Form CA-7), claim for compensation, for the
period commencing of May 10, 2004.
In a letter dated March 16, 2007, the Office advised appellant that his claim for
compensation could not be processed. The Office noted the April 21, 2004 decision determined
that the constructed position of customer service representative represented appellant’s wageearning capacity and that he had no loss in wage-earning capacity. The Office further noted that
the wage-earning determination was affirmed by the Board on March 9, 2005. Appellant was
informed that he could not file a claim for compensation when the Office determined he had no
loss in wage-earning capacity. In a letter dated March 26, 2007, the Office advised appellant to
review his previous appeal rights.
In a letter dated May 13, 2007, appellant requested reconsideration. He indicated that he
pursued training at Nordstrom Business Institute as a customer service representative; however,
he was unable to obtain employment due to poor typing skills. Appellant subsequently started
his own business as a curbside painter but was unable to generate clientele. He asserted that he
was still disabled from his accepted emotional condition and was entitled to compensation since
March 2004.
In a December 10, 2001 report, Dr. Miller noted a history of appellant’s work-related
injury and diagnosed generalized anxiety disorder, major depressive disorder, recurrent, severe
without psychotic features and post-traumatic stress disorder. He advised that appellant was
totally disabled from work. In the psychologist’s report of June 4, 2002, he noted improvements
in appellant’s condition and recommended rehabilitation counseling. On July 15, 2003
Dr. Miller noted that appellant successfully completed computer training and was searching for a
position. In a work capacity evaluation dated November 15, 2003, he advised that he reviewed
the job description for an administrative assistant and customer service representative and could
see no reason appellant could not perform either position. On October 25, 2005 the psychologist
noted that appellant completed his training; however, he was unable to obtain employment.
1

On May 10, 2000 appellant, a 51-year-old temporary data census enumerator, sustained injury while attempting
to obtain census information. The Office accepted acute reactions to stress, generalized anxiety disorder and
prolonged depressive reaction.
2

Docket No. 04-2293 (issued March 9, 2005).

2

Dr. Miller opined that appellant had residuals of his May 10, 2000 injury in that he experienced
anxiety when he was close to obtaining a job. In work capacity evaluations dated October 26,
2005 and March 27, 2007, he advised that there was no reason appellant should not attempt to
return to work for the census but there were no guarantees he could work full time. On
March 27, 2007 the psychologist indicated that appellant pursued several avenues for
employment including job training and a private painting business; however, he failed to commit
to a long-term concerted job search and therefore was unable to find employment. Dr. Miller
indicated that appellant’s episodes of depression and anxiety interfered with his pursuit of work.
Also submitted was a letter from Nordstrom Business Institute dated November 17, 2003, which
noted appellant’s typing scores.
By decision dated July 26, 2007, the Office denied appellant’s application for
reconsideration on the grounds that the request was not timely and that he did not present clear
evidence of error by the Office.
LEGAL PRECEDENT
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.3 The burden of proof is on the party attempting to show modification.4 There is no
time limit for appellant to submit a request for modification of a wage-earning capacity
determination.5
ANALYSIS
The Office adjudicated appellant’s May 13, 2007 request for reconsideration of the
April 21, 2004 wage-earning capacity determination under 5 U.S.C. § 8128(a). It found the
request untimely and that appellant did not submit relevant evidence or legal argument
establishing clear evidence of error.
In his May 13, 2007 correspondence, appellant used the term reconsideration. However,
his letter asserts that the April 21, 2004 wage-earning capacity determination was made in error
as he was totally disabled for work on or before that date and continued to be disabled after that
3

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).
Tamra McCauley, 51 ECAB 375 (2000).
4

See also

Darletha Coleman, 55 ECAB 143 (2003).

5

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005);
Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004) (in Peoples and Taylor, the Board determined that the
claimants’ requests for reconsideration of a wage-earning capacity determination constituted a request for
modification requiring a merit review. In both cases, the Board set aside the Offices’ decisions denying appellants’
reconsideration requests as untimely and remanded their cases for the Office to address the merits of their requests
for modification of a loss of wage-earning capacity decision).

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date. Appellant’s May 13, 2007 letter is actually a request for modification of the Office’s
April 21, 2004 wage-earning capacity determination.6 This request for modification is not a
request for reconsideration of the April 21, 2004 decision under 5 U.S.C. § 8128(a). Therefore,
the Office improperly characterized appellant’s May 13, 2007 letter as a request for
reconsideration subject to the one-year time limitation set forth at 20 C.F.R. § 10.607(a).
The Board finds that appellant has requested modification of the April 21, 2004 wageearning capacity determination. He is entitled to a merit review on that issue. On remand, the
Office shall adjudicate appellant’s request for modification of the wage-earning capacity
determination and issue an appropriate decision in the case.7
CONCLUSION
The Board finds that appellant requested modification of the April 21, 2004 wage-earning
capacity determination and is entitled to a merit review of the wage-earning capacity issue. The
case will be remanded to the Office for all necessary development and issuance of an appropriate
decision.

6

See supra note 2.

7

See Gary L. Moreland, supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: April 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Aurora, CO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0255
Issued: November 30, 2021

Case Submitted on the Record

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

On December 1, 2020 appellant filed a timely appeal from June 8 and August 3, 2020 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the
Appellate Boards assigned the appeal Docket No. 21-0255.2

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from June 8, 2020 was December 5, 2020. As this fell on a Saturday,
appellant had until the following business day, Monday, December 7, 2020 to file the appeal from the June 8, 2020
decision. See 20 C.F.R. § 501.3(f)(3). Since using December 10, 2020, the date the appeal was received by the Clerk
of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is December 1, 2020, which renders the appeal with regard to the
June 8, 2020 decision timely filed. See 20 C.F.R. § 501.3(f)(1).
2

The Board notes that, by decision dated May 14, 2021, OWCP denied modification of the August 3, 2020 decision.
However, appellant had already filed the current appeal to the Board on December 10, 2020. The OWCP may not
simultaneously have jurisdiction over the same issue. Consequently, the May 14, 2021 decision is set aside as null
and void. See L.F., Docket No. 19-1275 (issued October 29, 2020); Terry L. Smith, 51 ECAB 182 (1999); Arlonia B.
Taylor, 44 ECAB 591 (1993) (Alternate Member, Groom concurring in part and dissenting in part); Russell E. Lerman,
43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

On December 10, 2018 appellant, then a 54-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on November 11, 2018 she sustained left knee
and right wrist injuries when she tripped over an empty bin cart while in the performance of duty.
On February 8, 2019 OWCP accepted appellant’s claim for contusion of the left knee and sprain
of the right wrist. On August 14, 2019 it expanded the acceptance of the claim to include strain of
the muscle, fascia, and tendons of the lower back. OWCP subsequently also accepted lumbar
spondylosis without myelopathy or radiculopathy, and sacroiliitis.
In a report dated February 7, 2020, Dr. Amanda Cava, a Board-certified family
practitioner, diagnosed lumbar spondylosis without myelopathy or radiculopathy and advised that
appellant would undergo right wrist surgery on February 25, 2020. Dr. Cava recommended no
work beginning February 25, 2020. On February 25, 2020 appellant underwent OWCP-approved
right wrist arthropathy performed by Dr. Kulvinder Sachar, a Board-certified orthopedic and hand
surgeon.
On March 16, 2020 appellant filed claims for compensation (Form CA-7) for disability
from work for the periods February 25 through 29 and March 1 through 14, 2020.
In a letter from the employing establishment dated March 23, 2020, a representative of the
employing establishment explained that appellant had not worked due to surgery for her on-thejob injury from February 25 through March 12, 2020, and that she returned to a limited-duty
assignment at four hours per day on March 13, 2020 as instructed by her physician.
OWCP subsequently received additional evidence. On March 9 and 23, 2020 a physician
assistant assessed contusion of appellant’s left knee, ganglion cyst of the volar aspect of the right
wrist, right wrist sprain, and lumbar strain. On March 9, 2020 he recommended that appellant
return to work with restrictions of working only four hours per day, lifting up to 10 pounds
occasionally, pushing/pulling up to 10 pounds occasionally, wearing a splint/brace on the right
upper extremity, and sitting 50 percent of the time. On March 23, 2020 the physician assistant
again noted appellant’s restrictions, but indicated that appellant could work up to eight hours per
day.
On April 15, 2020 appellant filed a Form CA-7 for the period March 1 through 10, 2020.
OWCP subsequently received a report dated April 9, 2020, wherein Dr. John Aschberger,
Board-certified in physical medicine and rehabilitation, diagnosed strain of the muscle, fascia, and
tendons of the lower back, lumbar facet pain, and wrist strain. He noted that appellant was
currently working, but with a reduced schedule, stating that appellant had been working four hours
per day due to her right wrist condition, but that now she was working two six-hour days per week.
By decision dated June 8, 2020, OWCP denied appellant’s claim for wage-loss
compensation, finding that she had not established disability from work for the period February 25
through 29, 2020 causally related to the accepted November 11, 2018 employment injury. It stated
that it had not received from appellant any medical evidence supporting a restrictive work
schedule.
On June 8, 2020 OWCP received a report dated April 29, 2020 in which Dr. Cava
diagnosed right wrist sprain, triangular fibrocartilage complex (TFCC) tear, and lumbar strain.
2

Dr. Cava noted that appellant’s wrist strain was improving and that “she was released by
Dr. Sachar” on March 30, 2020. She noted that appellant could return to modified work and work
her entire shift with restrictions of lifting up to 10 pounds constantly and 20 pounds occasionally,
with pushing/pulling of up to 20 pounds occasionally.
By decision dated August 3, 2020, OWCP denied appellant’s claim for wage-loss
compensation, finding that she had not established disability from wo rk for the period March 1
through 28, 2020 causally related to the accepted November 11, 2018 employment injury. It noted
that it had not received any medical evidence supporting a restrictive work schedule.
The Board has duly considered this matter and finds that this case is not in posture for a
decision. In the case of William A. Couch,3 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In its June 8 and August 3, 2020 decisions, OWCP failed to address the relevant evidence
submitted by appellant. As such, OWCP failed to follow its procedures by properly discussing all
of the relevant evidence of record. 4 It is crucial that OWCP address all relevant evidence received
prior to the issuance of its final decision, as the Board’s decisions are final with regard to the
subject matter appealed.5
The Board thus finds that this case is not in posture for decision, as OWCP did not address
the evidence submitted by appellant in support of her claims for compensatio n.6 On remand,
OWCP shall review all evidence of record and, following any further development as it deems
necessary, it shall issue a de novo decision.

3

41 ECAB 548 (1990); see also S.H., Docket No. 19-1582 (issued May 26, 2020); R.D., Docket No. 17-1818
(issued April 3, 2018).
“All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
4

5

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 3.
6

See S.H., supra note 3; V.C., Docket No. 16-0694 (issued August 19, 2016).

3

IT IS HEREBY ORDERED THAT the August 3 and June 8, 2020 decisions of the Office
of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: November 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, GARY-TOLLESTON
STATION, Gary, IN, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1433
Issued: October 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 19, 2017 appellant, through counsel, filed a timely appeal from a May 24, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last merit
decision in this case was an August 21, 2013 Board decision.2 As there was no merit decision
issued by OWCP within 180 days of this appeal, pursuant to the Federal Employees’

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

The decision of the Board is final upon the expiration of 30 days from the date of issuance, and is final as to the
subject matter appealed. 20 C.F.R. § 501.6(d).

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel contends that OWCP erred as it did not consider her brief and a new
medical report dated June 13, 2016 from Dr. Neil Allen, a Board-certified internist and
neurologist, submitted by appellant along with her request for reconsideration. She asserts that
this evidence establishes causal relationship and requests that the Board accept appellant’s claim.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts as presented in the prior
Board decision are incorporated herein by reference. The relevant facts are as follows.
On June 15, 2012 appellant, then a 44-year-old supervisor of customer services, filed an
occupational disease claim (Form CA-2) alleging work-related tendinitis. She noted that she first
became aware of her condition on November 19, 2009 and realized its connection to her federal
employment on December 8, 2009.
By letter dated July 10, 2012, OWCP informed appellant of the deficiencies in her claim
and afforded her 30 days to submit additional evidence and respond to its questionnaire.
In an August 3, 2012 statement, appellant indicated that she performed the duties of a
clerk for a two-week period due to a staff shortage. She pushed all-purpose containers, gurneys,
and hand trucks, carried tubs and parcels, and sorted and loaded mail for deliveries. As a result,
appellant injured both shoulders. She submitted medical evidence dated March 13 to May 9,
2012 which addressed her bilateral shoulder conditions and physical therapy.
By decision dated September 7, 2012, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record did not contain a medical diagnosis from a
physician in connection with the accepted factors of employment. It noted that the reports from
a nurse practitioner and a physical therapist were not countersigned by a qualified physician, and
were therefore of no probative value.
On October 15, 2012 appellant requested reconsideration. She did not submit any
additional evidence. In an October 24, 2012 decision, OWCP denied appellant’s request for
3

5 U.S.C. § 8101 et seq.

4

The Board notes that appellant submitted new evidence with her appeal. The Board, however, is precluded from
reviewing evidence as its review of the case record is limited to the evidence of record which was before OWCP at
the time it issued its final decision. 20 C.F.R. § 501.2(c)(1); see Steven S. Saleh, 55 ECAB 169 (2003).
5

Docket No. 13-0896 (issued August 21, 2013).

2

reconsideration of the merits of the claim under section 8128(a) of FECA. It found that her
reconsideration request neither raised substantive legal questions nor included relevant and
pertinent new evidence.
On December 17, 2012 appellant again requested reconsideration and submitted new
evidence. On March 1, 2013 OWCP denied modification of the September 7, 2012 decision. It
found that the medical evidence submitted did not contain a rationalized medical opinion
explaining how appellant’s diagnosed bilateral shoulder conditions were caused by the
established employment factors.
On March 5, 2013 appellant appealed the September 7, 2012 and March 1, 2013
decisions to the Board. The Board, on August 21, 2013, affirmed these decisions, finding that
appellant had not met her burden of proof to establish a bilateral shoulder condition causally
related to the accepted employment factors.
Appellant again requested reconsideration on March 10, 2014. She did not submit
additional evidence. In a May 28, 2014 decision, OWCP denied appellant’s request
reconsideration of the merits of the claim under section 8128(a). It again found that
reconsideration request neither raised substantive legal questions nor included relevant
pertinent new evidence.

any
for
her
and

On June 3, 2015 appellant again requested reconsideration.
By decision dated May 24, 2017, OWCP denied appellant’s request for reconsideration of
the merits of her claim, finding that it had neither raised substantive legal questions nor included
relevant and pertinent new evidence sufficient to warrant reopening the case for further merit
review under section 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”6
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that

6

5 U.S.C. § 8128(a).

3

an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7
OWCP should review the file to determine whether the application for reconsideration
was received within one year of a merit decision. Timeliness is determined by the document
receipt date of the reconsideration request the received date in the Integrated Federal Employees’
Compensation System (iFECS). If the request for reconsideration has a document received date
greater than one year, the request must be considered untimely.8
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of it in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.9
The term clear evidence of error is intended to represent a difficult standard.10 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.11
ANALYSIS
The Board finds that this case is not in posture for decision and must be remanded to
OWCP for application of the appropriate standard of review.12
An application for reconsideration must be received by OWCP within one year of the
date of the last merit review of the claim, including any merit review by the Board.13 The last
merit decision of record was the Board’s August 21, 2013 decision.14 On March 10, 2014
appellant submitted a timely reconsideration request, within one year of the Board’s August 21,
2013 decision. On May 28, 2014 OWCP denied her request for reconsideration finding that she
neither raised substantive legal questions nor included relevant and pertinent new evidence
sufficient to warrant merit review. Appellant again requested reconsideration on June 3, 2015.
By decision dated May 24, 2017, OWCP denied her request, finding that she neither raised
substantive legal questions nor included relevant and pertinent new evidence sufficient to
warrant merit review.
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (February 2016).

9

20 C.F.R. § 10.607.

10

Supra note 8 at Chapter 2.1602.5.a (February 2016).

11

Id. at Chapter 2.1602.5.b.

12

See C.W., Docket No. 17-0836 (issued August 7, 2017); K.K., Docket No. 16-1187 (issued February 7, 2017);
E.B., Docket No. 16-0746 (issued June 1, 2016).
13

See Mary E. Schipske, 43 ECAB 318 (1991); see also C.V., Docket No. 14-1293 (issued February 23, 2015).

14

Supra note 5.

4

The Board finds that, in its May 24, 2017 decision, OWCP erroneously applied the
standard of review for timely requests for reconsideration as set forth at 20 C.F.R. §§ 10.605
through 10.607. As more than one year had elapsed from the August 21, 2013 merit decision to
the filing of appellant’s request for reconsideration on June 3, 2015, OWCP should have applied
the clear evidence of error legal standard.15 This is the appropriate standard for cases in which a
reconsideration request is untimely filed.16 As such, the Board will remand the case to OWCP
for application of the standard for reviewing an untimely request for reconsideration as set forth
in 20 C.F.R. § 10.607(b) under the more stringent clear evidence of error standard.17 Following
any necessary further development, OWCP shall issue an appropriate decision.
On appeal counsel contends that OWCP committed clear evidence of error as it did not
consider her brief and a new medical report dated June 13, 2016 from Dr. Allen submitted by
appellant along with her request for reconsideration.18 She asserts that this evidence establishes
causal relationship and asks that the Board accept appellant’s claim. As set forth above, the
Board does not have jurisdiction over the merits of the claim. Furthermore, the case will be
remanded to OWCP for application of the appropriate standard of review because appellant’s
request for reconsideration was untimely submitted.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

See John W. O Connor, 42 ECAB 797 (1991).

16

See Donna M. Campbell, 55 ECAB 241 (2004).

17

Dewayne C. Davis, Docket No. 94-2346 (issued August 14, 1997).

18

The Board notes that the evidence counsel claimed he submitted to OWCP on reconsideration is not contained
in the case record.

5

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2017 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision.
Issued: October 24, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, WOODSTOCK POST
OFFICE, Woodstock, VA, Employer
__________________________________________

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Appearances:
James A. Birt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2481
Issued: September 25, 2009

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 September 17, 2008 appellant, through her representative, filed a timely appeal from a
June 26, 2008 decision of the Office of Workers’ Compensation Programs denying her emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty causally related to factors of her federal employment.
FACTUAL HISTORY
On January 19, 2007 appellant, then a 34-year-old city carrier, filed an occupational
disease claim alleging that she experienced emotional distress as a result of ongoing harassment
by multiple coworkers. The employing establishment controverted the claim.
In an undated statement, appellant alleged that Sherry Callan acted unprofessionally
toward her and created a hostile work environment. She stated that the postmaster told her that

Ms. Callan, an employee in building maintenance, questioned her time card. Appellant asserted
that her time card was none of Ms. Callan’s concern. Further, she alleged that Ms. Callan made
statements to Garth Warner, another coworker, that appellant had several vehicle accidents and
that riding with her would be hazardous to his health.
On November 8, 2006 John Jenkel, a coworker, made a hostile work environment
complaint against appellant. On December 8, 2006 an employing establishment investigation
was completed. The investigation was requested on November 8, 2006 by a human resources
manager and conducted by a labor relations specialist and a postmaster from a different location.
Nine workers at the employing establishment were interviewed and eight of them also submitted
written witness statements on November 16 and 17, 2006. (The investigators did not ask the
employing establishment postmaster, Phyllis Deane, to submit a written statement although she
was interviewed.) The investigation disclosed a number of interactions between appellant and
Ms. Callan and both individuals wrote statements concerning those incidents and their
relationship.
In a November 17, 2006 interview, Gail Vasta stated that appellant and Ms. Callan had
personality problems, comparing them to “dogs with bones.” She stated that she could not
imagine them not having problems. Ms. Vasta discussed a January 2006 incident where
appellant and Ms. Callan were “out of control,” yelling at each other, and an October 6, 2006
incident. She felt that appellant and Ms. Callan should be evaluated and that management should
intervene in the situation.
On November 16, 2006 James Rhodes stated that he had witnessed two confrontations
between Ms. Callan and appellant, one being approximately a year ago and the other had been
three to four weeks ago. When asked when the situation between Ms. Callan and appellant
began, he replied that Ms. Callan had helped appellant move. Mr. Rhodes felt that their
relationship deteriorated afterwards.
In a November 16, 2007 interview, Postmaster Deane stated that appellant and
Ms. Callan could not respect each other’s space and caused problems at the employing
establishment. He reported an incident on October 6, 2006 when Ms. Callan claimed she was
attacked by appellant and alleged that she had tape recorded the incident. An investigation was
conducted after the incident. Postmaster Deane also reported that, on October 16, 2006,
Ms. Callan faxed a letter to the Office of the Inspector General (OIG) complaining that she and
other coworkers were fearful that appellant would shoot them. He stated that she attempted to
control and improve the situation by speaking with Ms. Callan and appellant both together and
individually, by conducting employee meetings about workplace behavior and by having a postal
service workplace improvement specialist visit the post office.
In a November 16, 2006 interview, Mr. Warner, a co-employee identified by appellant,
confirmed that Ms. Callan told him to be careful when he rides with appellant because she had
three hit-and-run accidents in one month and should be fired.
In a written statement dated November 17, 2006, Ms. Callan complained that appellant
never liked her, that she was aggressive, argumentative and that there was never an opportunity
to be friends with her. When asked about any outside relationship with appellant, Ms. Callan

2

said she had helped appellant move. She claimed she felt sorry for appellant because she was
forced to move from her apartment and needed help with a truck. Ms. Callan asserted that
appellant “told her things she did not want to know” and that she did not feel comfortable. She
described an incident in January 2006 when appellant “came after her,” pushing some telephone
books over, and an October 6, 2006 incident in which she secretly tape recorded appellant.
Ms. Callan also stated that appellant used to call her house constantly. She stated that appellant
asked to borrow money. Ms. Callan said she refused to lend appellant anything. She further
admitted that she had told Mr. Warner to be careful when riding with appellant because she has
had many accidents and had fallen down at the case.
In a November 16, 2006 interview, appellant agreed in her statement that she had spent
time with Ms. Callan outside the employing establishment. She claimed that Ms. Callan and her
husband picked up cabinets from appellant’s parents’ house. Appellant confirmed that
Ms. Callan helped her move in November 2005 and that they spent the entire Sunday together.
Appellant said that, about a week prior to her move, Ms. Callan met her out on her route and
stated that she felt guilty because everyone was rooting for another employee to be selected for
appellant’s full-time position. She stated that about the end of November she attempted to call
Ms. Callan about a washer and dryer that were for sale. Ms. Callan stopped taking her calls and
started shunning her at work.
On October 6, 2006 appellant felt as though coworkers were “bad mouthing” her. She
approached Ms. Callan at the time clock. Appellant told Ms. Callan that her job was on the line
and called her “certifiably nuts.” She did not know that Ms. Callan was recording the
conversation. Appellant stated that she was shaking because she was afraid of Ms. Callan. She
then asserted, in her statement of November 16, 2006, that Ms. Callan was trying to “bait me to
say something on tape.” Appellant admitted that her actions and comments in the taping incident
were inappropriate.
In a March 2, 2007 letter, the Office notified appellant of the deficiencies in her claim
and requested that she provide additional information. Appellant did not submit any additional
evidence.
By decision dated July 2, 2007, the Office accepted that the incidents occurred as alleged;
however, it found that appellant did not submit evidence containing a diagnosis that could be
connected to the work events.
On July 31, 2007 appellant filed a request for an oral hearing before an Office hearing
representative. She withdrew this request on November 28, 2007.
On March 28, 2008 appellant, through her representative, filed a request for
reconsideration.
By decision dated June 26, 2008, the Office modified the July 2, 2007 decision, finding
that appellant did not allege any compensable factors of employment and, thus, did not establish
that she sustained an injury in the performance of duty.

3

LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for the payment of compensation
benefits for injuries sustained in the performance of duty. To establish her claim that she
sustained an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying compensable employment factors or incidents
alleged to have caused or contributed to her condition; (2) medical evidence establishing that she
has an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions in the type of employment situations giving rise to a
compensable emotional condition under the Act. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
coverage under the Act.4 When an employee experiences emotional distress in carrying out her
employment duties and the medical evidence establishes that the disability resulted from her
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from an emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of her work.5 On the other hand, the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force or her
frustration from not being permitted to work in a particular environment or to hold a particular
position.6 Generally, actions of the employing establishment in administrative matters, unrelated
to the employee’s regular or specially assigned work duties, do not fall within the coverage of
the Act.7 However, an administrative or personal matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
1

5 U.S.C. §§ 8101-8193.

2

George C. Clark, 56 ECAB 162 (2004).

3

28 ECAB 125 (1976).

4

George C. Clark, supra note 2.

5

Lillian Cutler, supra note 3.

6

Id.

7

Michael L. Malone, 46 ECAB 957 (1995).

8

Charles D. Edwards, 55 ECAB 258 (2004).

4

providing an opinion on causal relationship and which working conditions may not be
considered.9 If a claimant does indicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, the Office must base its decision on an analysis of the medical evidence.10
ANALYSIS
The issue is whether appellant established that she sustained an emotional condition
causally related to factors of her employment.
Appellant broadly alleged that she experienced harassment from multiple coworkers. In
order to meet the burden of proof to establish a claim for compensation, an employee must
identify specific employment factors. General allegations of harassment are insufficient to
discharge this burden.11 Appellant only alleged two specific incidents of harassment. First, she
claimed that the postmaster informed her that Ms. Callan made a comment about her time card.
There is no further detail as to what Ms. Callan might have said or done. However, appellant
correctly contended that the issue was not Ms. Callan’s concern.
Second, appellant claimed that Ms. Callan defamed her by telling other coworkers that
appellant was unable to drive and had been in several vehicle accidents. This incident is
confirmed.
The Board finds that the alleged time card incident is not a compensable factor of
employment because there is no evidence as to what specifically happened. There is no
corroboration of appellant’s allegations regarding this incident and it remains a vague,
unsubstantiated allegation, not compensable under the Act.12 It is not even clear from the record
whether appellant is complaining about some action by Ms. Callan or by the postmaster who
mentioned the occurrence to appellant. The postmaster is certainly entitled to discuss time,
leave, time cards and other management and administrative matters with employees and there is
no reason she should not have mentioned this matter to appellant.
Further, the Board finds that the second allegation, that Ms. Callan told coworkers that
appellant was unable to drive her vehicle, is not a compensable factor of employment. It is
certainly tactless and even unkind, but it does not rise to the level of harassment.

9

See Norma L. Blank, 42 ECAB 384, 389-90 (1992).

10

Id.

11

See Sherman Howard, 51 ECAB 387 (2000).

12

For harassment or discrimination to give rise to a compensable disability, there must be evidence that the acts
alleged or implicated by the employee did, in fact, occur. Unsubstantiated allegations of harassment or
discrimination are not determinative of whether such harassment or discrimination occurred. A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative and reliable
evidence. Charles D. Edwards, 55 ECAB 258 (2004).

5

Based on the evidence of record, the Board finds that the alleged harassment and hostile
work environment arose out of a personal relationship between Ms. Callan and appellant. It did
not arise out of the performance of duty, nor did the employment facilitate the situation.13
During the course of the hostile work investigation conducted by the employing establishment,
both Ms. Callan and appellant admitted to a nonwork relationship outside their employment. In
a November 16, 2006 interview, appellant said she had spent time with Ms. Callan and detailed
contacts with her outside the employing establishment. She said that Ms. Callan picked up
cabinets from her parents’ house and that Ms. Callan had helped her move in November 2005.
Appellant also stated that she attempted to call Ms. Callan about a washer and dryer for sale but
that she stopped taking appellant’s calls. She admitted that the relationship deteriorated
afterward.
Similarly, Ms. Callan answered affirmatively when asked whether she had an outside
relationship with appellant and described helping her move in 2005. She also alleged that
appellant repeatedly called her house and, at some point, asked to borrow money, which
Ms. Callan refused. Moreover, appellant’s coworkers confirmed that the hostile feelings in the
workplace were due to the personality conflict between appellant and Ms. Callan. Mr. Rhodes
specifically stated that Ms. Callan helped appellant move and that the relationship deteriorated
afterward. Ms. Vasta compared appellant and Ms. Callan to “dogs with bones” and said the
conflict was based on personality problems.
The Board finds that the alleged harassment arose out of a deteriorating, personal
relationship based on events occurring outside the workplace between Ms. Callan and appellant.
This is evidenced by the results of the employing establishment’s investigation where appellant,
as well as her coworkers were interviewed. It is noteworthy that no one involved with the
situation mentioned any work-related cause for the disputes between appellant and Ms. Callan.
Neither Ms. Callan nor appellant identify a work activity or incident that started their quarrel
although both admit they argued at work. Employment was one arena in which they both actedout their dispute, but not its cause.
The instant case is easily distinguished from cases where friction-and-strain due to
appellant’s employment resulted in a dispute. The friction-and-strain doctrine provides that a
dispute may be said to arise in the course of employment where the work of the participants
brought them together and created the relations and conditions which resulted in the clash. In
Janet D. Yates,14 the Board found that an altercation arose out of the classification of a piece of
mail and did not involve a personal matter between appellant and a coworker. The Board held
that the work contributed and facilitated the dispute and, therefore, the altercation arose out of
employment and constituted a compensable work factor. Additionally, in Josie P. Waters,15 an
altercation occurred at work after a coworker bumped appellant’s arm. The Board found the
altercation to be a compensable work factor. The Board explained that there was no private prior
13

If an altercation or harassment arises out of a personal relationship from appellant’s domestic or private life and
is imported into the workplace, then the harassment is not found to arise out of the performance of duty. Agnes V.
Blackwell, 44 ECAB 200 (1996).
14

49 ECAB 240 (1997).

15

45 ECAB 513 (1994).

6

relationship that was imported into the workplace and work was the sole connection between
appellant and the coworker.
Rather, the evidence in this case, although there is no evidence of a physical
confrontation, shows that Ms. Callan and appellant involved in a relationship external to the
employing establishment and that the alleged harassment arose out of a deterioration of this
nonemployment situation. Appellant appears to have been a willing and active participant in the
disruptive behavior rather than the passive victim of harassment. The Board finds that the
conflict was imported into the workplace and cannot thereby be considered to have arisen in the
performance of duty.16
The Board notes that Ms. Callan’s statement, regarding appellant’s driving abilities, does
not rise to the level of harassment or otherwise fall within coverage of the Act. Although the
Board recognizes that a single event may be compensable, the incident must have more objective
impact than casual office gossip.17 Appellant cites a single statement by a custodial employee
regarding appellant’s driving abilities. Although corroborated, the statement does not carry the
weight or objective impact to break through the normal static and background noise of the
workplace.18
Therefore, the Board finds that appellant did not allege any compensable factors of
employment.
CONCLUSION
The Board finds that appellant did not establish that she sustained an emotional condition
in the performance of duty causally related to a compensable factor of her employment.

16

See Brenton A. Burbank, 53 ECAB 279 (2002) (where the Board found that an altercation arising from a traffic
dispute while appellant and a coworker were on their way to work was a personal dispute imported into the
workplace and, therefore, was not a compensable factor of employment); Edward Savage, Jr., (where the Board
found that a dispute concerning a personal debt owed to appellant by a coworker was imported to the workplace.
Because there was no indication that work contributed or facilitated the dispute, the altercation was not a
compensable work factor).
17

The Board has held verbal altercations or abuse among coworkers may constitute a compensable factor of
employment; however, not every statement uttered in the workplace will be covered by the Act. See Sherman
Howard, 51 ECAB 387 (2000).
18

Compare Sandra Davis, 50 ECAB 450 (1999) (where the Board found a compensable factor of employment
where appellant was harassed by derogatory comments regarding her sex life, alcohol and drug abuse and mental
problems made by coworkers after personal information relating to a sexual harassment and Equal Employment
Opportunity Commission investigation was revealed in a published article and on “60 Minutes” by a director from
the employing establishment.); Dorthea M. Belnavis, 57 ECAB 377 (2006) (the Board found a compensable factor
of employment where appellant’s supervisor improperly accessed medical records, made harassing statements about
her emotional condition and discriminated against her concerning her job performance.); Abe E. Scott, 45 ECAB 164
(1993) (where the Board found that the use of the epithet “apes” by coworkers constituted harassment and was a
compensable factor of employment.)

7

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2009
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Brownsville, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-497
Issued: April 22, 2013

Case Submitted on the Record

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

JURISDICTION
On January 2, 2013 appellant filed a timely appeal from a November 14, 2012 schedule
award 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 more than 47 percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On February 6, 2012 appellant, then a 58-year-old Customs and Border Protection
supervisor, filed an occupational disease claim alleging that he developed bilateral hearing loss
1

5 U.S.C. § 8101 et seq.

as a result of high levels of employment-related noise exposure. He stated that he had a hard
time hearing phone conversations and developed ringing in his ears from employment-related
noise. Appellant became aware of his condition and of its relationship to his employment on
February 6, 2012. He notified his supervisor and first received medical care on that same date.
By letter dated February 29, 2012, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment and all nonoccupational exposure to noise. OWCP also requested that he provide
medical documentation pertaining to any prior treatment he received for ear or hearing problems.
It requested that the employing establishment provide noise survey reports for each site where
appellant worked, the sources and period of noise exposure for each location and whether he
wore ear protection.
In a February 23 and March 5, 2012 narrative statement, appellant provided a history of
his employment and reported that he worked for the employing establishment from August 1996
to the present. He stated that he was exposed to noise from vehicles constantly running, missing
mufflers, diesel vehicles, loud engine motors, rail locomotives and jet engines. Hearing
protection was not provided. Appellant further stated that he sometimes rode a motorcycle to
work, but did not have any hobbies which would cause him hearing loss.
Audiograms dated February 6, March 12 and May 1, 2012 were submitted. In a May 1,
2012 medical report, Dr. Antonio Diaz, Board-certified in family medicine, reported that
appellant had a history of work-related noise exposure and vertigo. He noted that hearing loss
had been present for five years. Dr. Diaz stated that appellant’s hearing loss showed moderateto-severe sensorineural hearing loss bilaterally with Type A tympanograms. He diagnosed
sensorineural hearing loss and vertigo secondary to labyrinthitis.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Gregory S.
Rowin, Board-certified in otolaryngology, for a second opinion evaluation. An audiogram was
completed on August 29, 2012 which revealed the following decibel (dB) losses at 500, 1,000,
2,000 and 3,000 hertz (Hz): 50, 50, 55 and 60 for the right ear and 45, 50, 55 and 60 for the left
ear. Speech reception thresholds were 50 dB on the right and 50 dB on the left, while auditory
discrimination scores were 88 percent on the right and 80 percent on the left. Dr. Rowin
reported that appellant complained of hearing problems getting gradually worse, more so in the
past year. He diagnosed moderate-to-severe sensorineural hearing loss and stated that the pattern
of hearing loss typically required hearing aids. Dr. Rowin opined that appellant’s hearing loss
was in excess of what would normally be predicated on the basis of presbycusis and that
appellant’s workplace noise exposure caused his bilateral sensorineural hearing loss.
Applying the standard provided by the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides) to the
August 29, 2012 audiometric data, Dr. Rowin calculated that appellant sustained 43.125 percent
monaural hearing impairment in the right ear and 41.25 percent monaural hearing impairment in
the left ear. He calculated a binaural hearing impairment of 41.56 percent. On the form report,
2

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

2

Dr. Rowin noted that appellant had tinnitus which interfered with his activities of daily living
and therefore added five percent impairment for tinnitus, for a total of 46.56 percent binaural
hearing impairment (41.56 percent + 5 percent for tinnitus). He listed August 29, 2012 as the
date of maximum medical improvement and recommended hearing aids.
By decision dated September 12, 2012, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On September 12, 2012 OWCP referred the case file to OWCP’s medical adviser to
determine the extent of appellant’s hearing loss and permanent impairment due to his
employment-related noise exposure.
On September 13, 2012 OWCP’s medical adviser reviewed Dr. Rowin’s August 29, 2012
otologic examination report and agreed that appellant’s bilateral sensorineural hearing loss was
due to occupational noise exposure. He applied the audiometric data to OWCP’s standard for
evaluating hearing loss under the sixth edition of the A.M.A., Guides and determined that
appellant sustained 46.6 percent binaural hearing loss.3 The medical adviser averaged
appellant’s left ear hearing levels of 45, 50, 55 and 60 dB at 500, 1,000, 2,000 and 3,000 Hz,
which totaled 52.5. He then subtracted a 25-dB fence and multiplied the balance of 27.5 by 1.5
to find 41.25 percent left ear monaural hearing loss. The medical adviser then averaged
appellant’s right ear hearing levels of 50, 50, 55 and 60 dB at 500, 1,000, 2,000 and 3,000 Hz,
which totaled 53.75. After subtracting out a 25-dB fence, he multiplied the remaining 28.75
balance by 1.5 to calculate a 43.125 percent right ear monaural hearing loss. The medical
adviser then calculated 41.6 percent binaural hearing loss by multiplying the lesser left ear loss
of 41.25 percent by 5, adding the greater 43.125 percent right ear loss and dividing this sum by 6.
He added 5 percent for tinnitus for a total of 46.6 percent binaural hearing impairment (41.6
percent + 5 percent for tinnitus). The medical adviser concluded that hearing aids were
authorized and the date of maximum medical improvement as August 29, 2012.
On October 1, 2012 appellant filed a claim for a schedule award (Form CA-7).
By decision dated November 14, 2012, OWCP granted appellant a schedule award for
41.6 percent binaural hearing loss (41.6 percent sensorineural + 5 percent tinnitus). The award
covered a period of 94 weeks from August 29, 2012 to June 17, 2014. Appellant’s weekly pay
was computed at the 75 percent augmented rate for employees with dependents.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
3

Id.

4

5 U.S.C. §§ 8101-8193.

3

consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions.6 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.7
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.8 The A.M.A., Guides state that, if tinnitus
interferes with [Activities of Daily Living (ADLs)], 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.9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10 It may follow the advice of its
medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.11
ANALYSIS
The issue is whether appellant has more than a 47 percent binaural hearing loss.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Rowin, a
Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was completed
5

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

6

See A.M.A., Guides 250.

7

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
8

See A.M.A., Guides 249.

9

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
11

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

4

on August 29, 2012 which revealed the following dB losses at 500, 1,000, 2,000 and 3,000 Hz:
50, 50, 55 and 60 for the right ear and 45, 50, 55 and 60 for the left ear. Speech reception
thresholds were 50 dB on the right and 50 dB on the left, while auditory discrimination scores
were 88 percent on the right and 80 percent on the left. Dr. Rowin diagnosed moderate-to-severe
bilateral sensorineural loss as a result of appellant’s federal workplace noise exposure. He stated
that appellant had tinnitus which interfered with his ADLs. Hearing aids were recommended.
Applying the August 29, 2012 audiometric data and using the sixth edition of the
A.M.A., Guides, Dr. Rowin calculated that appellant sustained 43.125 percent monaural hearing
impairment in the right ear and 41.25 percent monaural hearing impairment in the left ear. He
calculated a binaural hearing impairment of 41.56 percent. On the form report, Dr. Rowin added
5 percent impairment for tinnitus, for a total of 46.56 percent binaural hearing impairment (41.56
percent + 5 percent for tinnitus).12 He listed August 29, 2012 as the date of maximum medical
improvement.
OWCP then properly referred the medical evidence to its medical adviser, for a rating of
permanent impairment in accordance with the A.M.A., Guides.13
On September 13, 2012 OWCP’s medical adviser applied the findings of the August 29,
2012 audiogram to calculate 46.6 percent binaural hearing loss.14 He averaged appellant’s left
ear hearing levels of 45, 50, 55 and 60 dB at 500, 1,000, 2,000 and 3,000 Hz, which totaled 52.5.
The medical adviser then subtracted a 25-dB fence and multiplied the balance of 27.5 by 1.5 to
find 41.25 percent left ear monaural hearing loss. He then averaged appellant’s right ear hearing
levels of 50, 50, 55 and 60 dB at 500, 1,000, 2,000 and 3,000 Hz, which totaled 53.75. After
subtracting out a 25-dB fence, the medical adviser multiplied the remaining 28.75 balance by 1.5
to calculate a 43.125 percent right ear monaural hearing loss. He then calculated 41.6 percent
binaural hearing loss by multiplying the lesser left ear loss of 41.25 percent by 5, adding the
greater 43.125 percent right ear loss and dividing this sum by 6. The medical adviser added 5
percent for tinnitus for a total of 46.6 percent binaural hearing impairment (41.6 percent + 5
percent for tinnitus). He recommended hearing aids and noted the date of maximum medical
improvement as August 29, 2012, concluding that appellant’s hearing loss was caused by his
occupational noise exposure. The Board finds that the medical adviser properly applied the
A.M.A., Guides in calculating appellant’s impairment rating and OWCP correctly relied on the
medical adviser opinion to find that appellant sustained 46.6 percent binaural hearing loss.15 The
Board notes that OWCP policy is to round the calculated percentage to the nearest whole
number.16 Thus appellant’s binaural hearing loss should be rounded to 47 percent. The error in
this case is harmless.

12

A.M.A., Guides 249.

13

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

14

Id.

15

See Linda Beale, 57 ECAB 429 (2006).

16

See T.H., Docket No. 12-764 (issued February 26, 2013).

5

A schedule award provides for payment of compensation for a specific number of weeks
as prescribed by the statute.17 FECA provides that a claimant is entitled to 52 weeks of
compensation for a 100 percent loss of hearing in one ear and 200 weeks’ compensation for 100
percent hearing loss in both ears. Multiplying 47 percent by the 200 weeks provided for binaural
hearing loss results in a total of 94 weeks of compensation, the number of weeks OWCP
authorized for payment of appellant’s schedule award. Thus, the Board finds that OWCP
properly determined the number of weeks of compensation.
In its November 14, 2012 decision, OWCP stated that appellant was entitled to
$17,713.66 in schedule award compensation for the period August 29, 2012 to June 17, 2014.
This was based on multiplying appellant’s weekly pay rate of $2,041.08 by the 75 percent
augmented compensation rate which totaled $1,530.81, resulting in a payment of $6,123.24
every four weeks.18
With respect to the specific period for payment of the 94 weeks of compensation, this is
based on the date of maximum medical improvement which occurred on August 29, 2012, based
upon Dr. Rowin’s opinion of August 29, 2012. The determination of the date for maximum
medical improvement ultimately rests with the medical evidence,19 and is usually considered to
be the date of the evaluation by the physician which is accepted as definitive by OWCP.20 The
Board finds that OWCP properly determined the period of the award for 94 weeks from
August 29, 2012 to June 17, 2014.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that he sustained greater than 47 percent
binaural hearing loss for which he received a schedule award.

17

5 U.S.C. § 8107.

18

The Board notes that on appeal appellant stated that he should be compensated the full amount based on his
hearing loss and complications associated with his hearing loss. The basic rate of compensation paid under FECA is
66 2/3 percent of the injured employee’s monthly pay. Where the employee has one or more dependents, as in this
case, as defined in FECA, the employee is entitled to have his or her basic compensation augmented at the rate of 8
1/3 percent for a total of 75 percent of monthly pay. 5 U.S.C. § 8110(b). The number of weeks of compensation for
a schedule award is determined by the compensation schedule found in section 8107(c) of FECA. 5 U.S.C.
§ 8107(c); Dennis R. Stark, Docket No. 05-1826 (issued January 10, 2006).
19

L.H., 58 ECAB 561 (2007).

20

Mark Holloway, 55 ECAB 321, 325 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7