United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 16-0816
Issued: November 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2016 appellant, through counsel, filed a timely appeal from a February 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he has more than four percent
permanent impairment of his right lower extremity, for which he received a schedule award.
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.

FACTUAL HISTORY
On February 8, 2006 appellant, then a 46-year-old mail clerk, filed a traumatic injury
claim (Form CA-1) alleging that on February 7, 2006 he injured his right ankle when he slipped
and fell from a platform at work. OWCP accepted the claim for right ankle distal fibula fracture
with deltoid ligament rupture and paid benefits. Appellant stopped work on the date of injury
and underwent surgery on February 10, 2006. He resumed limited-duty work on May 6, 2006
and returned to his regular duties on July 3, 2007.
A progress note from Dr. Lisa L. Vickers, Board-certified in orthopedic surgery, dated
December 7, 2007, related that appellant was working full-time, full duty, but he had been with
pain in his ankle for which he was on prescription medication. Physical examination revealed no
swelling in the ankle, no restriction in range of motion, no significant tenderness. Appellant was
neurovascularly intact. Previous x-rays revealed well-fixed and well-healed distal fibular
fracture. A magnetic resonance imaging (MRI) scan showed an OCD lesion of the medial talus,
but appellant never followed through on the suggested ankle arthroscopy. Dr. Vickers
recommended that appellant work sedentary duty and return on an as needed basis.
On September 13, 2010 OWCP received appellant’s request for a schedule award (Form
CA-7).
In an August 26, 2010 report, Dr. Martin Fritzhand, a specialist in occupational medicine,
noted appellant’s history of injury. He found that maximum medical improvement (MMI) had
been achieved in February 2007. Dr. Fritzhand related that appellant’s examination revealed a
mildly antalgic gait, with squatting to 80 percent of normal. Forward bending was accomplished
to 90 degrees. Appellant’s entire right ankle was tender to palpation. Plantar flexion was limited
to 20 degrees, inversion to 0 degrees, and dorsiflexion to 10 degrees. Strength was normal and
no atrophy was found. Sensation was intact, but the right Achilles tendon reflex was absent.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment3 (hereinafter A.M.A., Guides), and citing to tables and figures,
Dr. Fritzhand opined that appellant had 12 percent permanent impairment of the right lower
extremity. Using Table 16-2, he found the default value for malleolar ankle fracture with mild
motion deficit was 10. Dr. Fritzhand found that appellant had grade modifier 2 for functional
history under Table 16-6, a grade modifier 1 for physical examination under Table 16-7, and a
grade modifier of 1 for clinical studies under Table 16-8. The grade modifiers therefore moved
the default value from C to D, which resulted in a finding of 12 percent permanent impairment of
the right lower extremity.
By letters dated September 16, 2013 and February 11, 2014, counsel asked OWCP the
status of the schedule award claim.
On February 24, 2014 OWCP advised appellant of the evidence needed to support a
schedule award claim, noting that there was no narrative report outlining his current condition.
Appellant was afforded 30 days for submission of the additional evidence.
3

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

2

On March 18, 2014 appellant submitted a claim for compensation (Form CA-7),
requesting schedule award compensation benefits. No additional medical evidence was
submitted.
By decision dated April 1, 2014, OWCP denied the claim for a schedule award, noting
the lack of current medical evidence of file to support impairment. It found that Dr. Fritzhand’s
August 26, 2010 report was too stale to consider.
On April 8, 2014 OWCP received counsel’s request for a telephonic hearing before an
OWCP hearing representative. By decision dated September 10, 2014, the Branch of Hearings
and Review remanded the case to OWCP, finding it not in posture for a hearing as
Dr. Fritzhand’s report constituted prima facie evidence of impairment and instructed OWCP to
forward the evidence to its medical adviser for consideration of a schedule award.
In a September 12, 2014 report, an OWCP medical adviser, Dr. Morley Slutsky, a Boardcertified occupational medicine specialist, reviewed the statement of accepted facts (SOAF) and
the medical record. He found the date of MMI was December 7, 2007. Dr. Slutsky indicated
that on December 7, 2007 appellant had mild discomfort related to the ankle and had a normal
examination with full ankle range of motion and no tenderness, crepitation, or swelling.
Using the diagnosis of right ankle malleolus fracture, Dr. Slutsky noted imaging studies
which documented the injury and recovery. Multiple examinations had found a healed fracture,
with normal examination of the ankle. Dr. Slutsky found Dr. Fritzhand’s findings inconsistent
with appellant’s best efforts at MMI. Therefore, he used the findings from the December 7, 2007
report of Dr. Vickers in the determination of impairment. Citing normal motion of the right
ankle, Dr. Slutsky found no ratable impairment of the preexisting ankle conditions and found
class 0 under Table 16-2 of A.M.A., Guides. He found that Dr. Fritzhand’s use of the default
value for the fracture was incorrect, as no motion loss was documented. Using the diagnosis of
fracture with no loss of motion or malalignment, Dr. Slutsky assigned class 1 default value or
five percent. He disagreed with Dr. Fritzhand’s functional history grade modifier as there was
no consistent evidence of altered gait or positive Trendelenburg test. Dr. Slutsky assigned a
grade modifier of 1, whereas Dr. Fritzhand had assigned modifier of 2. For physical examination
modifier, he found a value of 0, as there was no crepitus, tenderness or swelling at MMI. After
application of grade modifiers, a final impairment rating of three percent permanent impairment
of the right lower extremity was calculated.
On November 14, 2014 OWCP declared a conflict in medical opinion evidence between
Dr. Fritzhand and Dr. Slutsky, the medical adviser, and arranged for an impartial medical
examination with Dr. Thomas Bender, a Board-certified orthopedic surgeon, to provide an
impartial medical opinion.
In a February 2, 2015 report, Dr. Bender noted the history of injury, reviewed the SOAFs
and medical record, and noted examination findings. He noted that, while appellant was being
followed by a podiatrist, no treatment for the ankle injury had occurred since 2009, when
implanted hardware was removed. Since then, appellant continued to work in a full-duty
capacity. The date of MMI was noted as January 31, 2015. Dr. Bender noted that appellant
could briskly walk, without aid. Examination findings revealed no external rotation of the ankle

3

or weakness and intact posterior tibial tendon. Bilaterally, the third metatarsal was prominent
with reactive calluses bilaterally. Ankle motion was symmetrical bilaterally and some numbness
noted over the surgical scar. No asymmetry with the contralateral ankle was found relative to
shoe wear, atrophy, edema, motion, or skin integrity. Under Table 16-2, of the A.M.A., Guides,
Dr. Bender used the diagnosis of ankle fracture with no loss of motion or malalignment to
establish class 1. He indicated that the final permanent impairment rating of appellant’s right
lower extremity was four percent.
In a March 20, 2015 report, an OWCP medical adviser, Dr. Daniel Zimmerman, a Boardcertified internist, reviewed the SOAF and the medical record, including Dr. Bender’s report. He
noted that Dr. Bender failed to apply the grade modifiers found in Table 16-6 through Table
16-8. Dr. Zimmerman noted that class 1 for the diagnosis of fracture, nondisplaced with minimal
findings, had a default value of C or five percent impairment. As appellant’s gait was reported
as normal with no specialized footwear, he assigned a Functional History (GMFH) modifier of 0.
As Dr. Bender had found surgical scar numbness, he assigned a Physical Examination (GMPE)
modifier of 1. He indicated that the Clinical Studies (GMCS) modifier was not used as the
studies were used to establish the diagnosis. A net adjustment of -1 was found under the net
adjustment formula, (GMFH - CDX)(0-1) + (GMPE - CDX)(1-1) + (GMCS - CDX) (N/A),
which resulted in four percent permanent impairment of the right lower extremity.
By decision dated April 22, 2015, OWCP granted appellant a schedule award for four
percent permanent impairment of the right lower extremity. The award ran for 11.52 weeks of
compensation for the period January 31 to April 21, 2015.
On May 4, 2015 OWCP received counsel’s April 29, 2015 request for a telephonic
hearing before an OWCP hearing representative. The hearing was held on December 16, 2015.
Appellant testified that he was working full duty as a mail handler and not receiving any
treatment for his ankle. Counsel argued that Dr. Bender was not selected by an outside vendor or
in accordance with the referee selection protocols. He asked that OWCP declare a conflict and
arrange an impartial examination to resolve the conflict between Drs. Bender and Fritzhand.
By decision dated February 12, 2016, an OWCP hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
The schedule award provision of FECA 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.4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

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all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition
(including identification of a default grade value), the net adjustment formula is applied using the
grade modifier for functional history, grade modifier for physical examination, and grade
modifier for clinical studies.7 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX).8 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.9
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11 OWCP’s medical adviser may review the opinion, but the resolution of
the conflict is the responsibility of the impartial medical specialist.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13

5

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
6

A.M.A., Guides, supra note 3, section 1.3, The ICF: A Contemporary Model of Disablement.

7

Id. at 493-531.

8

Id. at 521.

9

Id. at 23-28; see also R.V., Docket No. 10-1827 (issued April 1, 2011).

10

5 U.S.C. § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB
435 (2003).
11

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB
313 (2003); David W. Pickett, 54 ECAB 272 (2002).
12

V.G., 59 ECAB 635 (2008); Thomas J. Fragale, 55 ECAB 619 (2004); see also Richard R. LeMay, 56 ECAB
341 (2005).
13

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

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ANALYSIS
OWCP accepted appellant’s claim for right ankle fracture with deltoid ligament rupture
and approved his February 10, 2006 surgery. The issue is whether appellant has more than four
percent permanent impairment of the right lower extremity for which he received a schedule
award. The Board finds that appellant has not met his burden of proof to establish that he has
permanent impairment of the right lower extremity greater than the four percent previously
awarded.
In his August 26, 2010 report, Dr. Fritzhand found that MMI had been achieved in 2007
and opined appellant had 12 percent permanent impairment to the right lower extremity.
Dr. Slutsky, an OWCP medical adviser, on September 12, 2014 reviewed Dr. Fritzhand’s report
and found MMI had been reached by December 7, 2007. He found that Dr. Fritzhand’s findings
were inconsistent with appellant’s best efforts at MMI and used the findings from Dr. Vickers’
December 7, 2007 report to opine that appellant had three percent permanent impairment to the
right lower extremity. OWCP thereafter declared a conflict in the medical opinion evidence.
The Board finds that OWCP improperly found a conflict in medical opinion and referred
appellant to Dr. Bender for an impartial medical opinion on the degree of impairment. The
Board has held that stale evidence cannot create a conflict of medical opinion or require the
selection of a referee physician.14 Dr. Vickers’ report from December 2007 contained stale
findings, which were not properly utilized in 2014 to create a conflict in the medical opinion
evidence. The Board has held that an impairment rating that is not based on reasonably current
examination findings is of little probative value. Thus, the Board previously found that it was
inappropriate for an OWCP medical adviser to base his impairment rating on examination
findings which were nearly three years old at the time of the medical adviser’s impairment
calculation.15 As a proper conflict did not exist in the medical opinion evidence at the time
appellant was referred to Dr. Bender, his report is not entitled to the special weight given to an
impartial medical specialist. His report however should be considered for its own intrinsic
value.16
In his February 2, 2015 medical report, Dr. Bender opined that appellant had four percent
permanent impairment of his right lower extremity and MMI was noted as January 31, 2015.
According to Table 16-2, page 503, he utilized his examination findings and medical records to
determine class 1 diagnosed-based impairment for an ankle fracture with no loss of motion or
malalignment. Dr. Bender provided no explanation, utilizing grade modifiers, to explain how he
arrived at four percent right lower extremity impairment.
Dr. Zimmerman, serving as OWCP’s medical adviser, reviewed Dr. Bender’s report and
agreed with the rating of four percent permanent impairment. He noted that Dr. Bender failed to
apply the grade modifiers found in Table 16-6 through Table 16-8 and that the default value for
14

See D.B., Docket No. 16-0261 (issued June 9, 2016).

15

T.M., Docket No. 16-0429 (issued August 11, 2016).

16

See M.R., Docket No. 11-1419 (issued May 21, 2012).

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class 1 diagnosed-based impairment for an ankle fracture with no loss of motion or malalignment
was five percent. Utilizing the findings in Dr. Bender’s report, the medical adviser assigned a
functional history grade modifier of 0, a physical examination modifier of 1 and advised the
clinical studies modifier was not used as the studies were used to establish the diagnosis.
Applying the net adjustment formula, (GMFH - CDX) (0-1) + (GMPE - CDX) (1-1) + (GMCS CDX) (N/A), the medical adviser found a net adjustment of -1. Application of the net
adjustment formula meant that movement was warranted one place to the left of class 1 default
value C to grade B for four percent lower right extremity permanent impairment.
Dr. Zimmerman confirmed MMI was reached as of January 31, 2015.
The Board finds that the opinion of Dr. Zimmerman is thorough and well rationalized.
Dr. Zimmerman utilized the findings from Dr. Bender. Board precedent is well settled that when
a physician’s report gives an estimate of impairment but does not address how the estimate is
based upon the A.M.A., Guides, OWCP may follow the advice of its medical adviser where he
or she has properly applied the A.M.A., Guides.17 Dr. Zimmerman properly utilized Table 16-2
of the A.M.A., Guides finding class 1 grade B ankle fracture, nondisplaced with minimal
findings, resulted in a schedule award for four percent permanent impairment of the right lower
extremity.
Accordingly, the Board finds Dr. Zimmerman correctly applied the A.M.A., Guides to
find that appellant had four percent permanent impairment of the right lower extremity, for
which he received a schedule award.18 Appellant has not submitted sufficient evidence to
establish that he has more than four percent permanent impairment to the right lower extremity.19
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. As noted
above, Dr. Bender’s examination findings were used by the medical adviser, who correctly
applied the A.M.A., Guides to find that appellant had four percent impairment to the right lower
extremity, for which he received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish more than four percent permanent
impairment of the right lower extremity.

17

See T.R., Docket No. 15-1862 (issued March 24, 2016); Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R.
Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31 ECAB 846 (1980).
18

Y.K., Docket No. 11-1623 (issued June 25, 2012).

19

J.S., Docket No. 12-1170 (issued November 9, 2012); J.J., Docket No. 10-839 (issued December 23, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the February 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORP LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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

Docket No. 07-570
Issued: May 18, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2006 appellant timely appealed the December 6, 2006 merit decision of
the Office of Workers’ Compensation Programs, which accepted a schedule award for five
percent binaural hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than five percent binaural hearing loss for which
he has received a schedule award.
FACTUAL HISTORY
On January 31, 2006 appellant, then a 65-year-old retired engine mechanic and inspector,
filed an occupational disease claim for hearing loss caused by noise exposure in the course of his
federal employment. The Office accepted the claim for binaural hearing loss.

On July 19, 2006 the Office referred appellant to Dr. Montra Kanok, a Board-certified
otolaryngologist, for audiometric testing and otologic evaluation. Dr. Kanok submitted a report
detailing the examination on August 8, 2006 with an accompanying audiogram obtained on that
day. He found that appellant had high frequency sensorineural hearing loss in both ears
associated with mild sensory hearing loss on the low and median frequencies. The audiogram
reflected testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps)
and revealed the following: right ear decibels 25, 15, 25 and 65; left ear decibels 15, 15, 25 and
55. Dr. Kanok opined that the audiogram demonstrated a bilateral symmetric sensorineural
hearing loss due in part to noise exposure during appellant’s federal employment.
In a September 7, 2006 decision, the Office accepted appellant’s claim for noise-induced
hearing loss. On September 13, 2006 appellant filed a Form CA-7, claim for compensation,
requesting a schedule award for his hearing loss.
The Office referred the case file to Dr. David N. Schindler, a Board-certified
otolaryngologist, to determine if appellant’s accepted hearing loss was sufficient to warrant a
schedule award. In a report dated November 12, 2006, Dr. Schindler found that appellant had a
five percent binaural hearing loss.
In a December 6, 2006 decision, the Office granted a schedule award for a five percent
binaural loss of hearing. The period of the award ran from January 3 through March 13, 1997.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 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

1

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

2

everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 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, and then added to the greater loss and the total is divided by six to arrive at the amount
of the binaural hearing loss.7
ANALYSIS
In reviewing appellant’s August 8, 2006 audiogram, the frequency levels recorded at 500,
1,000, 2,000 and 3,000 cps for the right ear reveal decibel losses of 25, 15, 25 and 65,
respectively, for a total of 130 decibels. This figure when divided by 4 results in an average
hearing loss of 32.5 decibels. The average loss of 32.5 is reduced by 25 decibels to 7.5, and then
multiplied by the factor of 1.5, which results in an 11.3 percent ratable monaural hearing loss for
the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 15, 15, 25 and 55 decibels respectively, for a total of 110 decibels.
Utilizing the above-noted formula, 110 decibels divided by 4 results in an average loss of 27.5
decibels. This average loss is reduced by the fenced of 25 to reach a 2.5 decibel loss and then
multiplied by the factor of 1.5 to result in a 3.8 monaural loss for the left ear. To determine the
binaural loss, the lesser loss of 3.8 decibels is multiplied by 5 to reach a product of 19 which is
then added to the greater loss of 11 decibels to reach a sum of 30, which is then divided by 6 to
reach a binaural loss of 5 percent. Accordingly, appellant’s most recent audiogram establishes a
ratable hearing loss of five percent for both ears.
Under the Act, the maximum award for binaural hearing loss is 200 weeks of
compensation.8 Since the binaural hearing loss in this case is five percent, appellant would be
entitled to five percent of 200 weeks or 10 weeks of compensation. Appellant’s schedule award
ran from January 3 through March 13, 1997, or 10 weeks of compensation. The Office properly
determined the number of weeks of compensation to which appellant is entitled under the
schedule award. This binaural loss is greater then the individual monaural loss which would
only result in payment of eight weeks of compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he is
entitled to a schedule award for his employment-related hearing loss greater than the five percent
awarded.

5

Id.

6

Id.

7

Id.

8

5 U.S.C. § 8107(c)(13)(B). Monaural loss allows a maximum of 52 weeks of compensation.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 6, 2006 be affirmed.
Issued: May 18, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bowling Green, KY, Employer
__________________________________________

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

Docket No. 21-0002
Issued: April 29, 2021

Case Submitted on the Record

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

JURISDICTION
On October 1, 2020 appellant, through counsel, filed a timely appeal from a May 20, 2020
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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left eye vitreous
hemorrhage causally related to the accepted October 2, 2019 employment incident.

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.

FACTUAL HISTORY
On October 25, 2019 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 2, 2019 his eye hemorrhaged and he lost vision when
he bent over to deliver a package. On the reverse side of the claim form appellant’s supervisor
contended that appellant was not injured in the performance of duty and that he did not report an
injury or illness. Appellant stopped work on October 9, 2019.
In support of his claim, appellant submitted a report dated October 3, 2019 by
Dr. Marcus J. Solomon, a Board-certified ophthalmologist. Dr. Solomon indicated that appellant
noticed a blood-like tear in his oculus sinister, left eye, and noted that appellant believed that a
new hemorrhage occurred in that eye on October 2, 2019. Appellant related that the hemorrhage
had cleared up some since the onset, but was still covering half of his visual acuity. Dr. Solomon
diagnosed left eye vitreous hemorrhage and preexisting bilateral proliferative diabetic retinopathy.
In a development letter dated November 7, 2019, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It requested that he submit a
narrative medical report from his treating physician, which provided a medical explanation as to
how the reported work incident caused or aggravated a medical condition. OWCP afforded
appellant 30 days to submit the necessary evidence.
In response, appellant submitted an undated note from Dr. Solomon, received by OWCP
on December 10, 2019, indicating that appellant would require another surgery on December 5,
2019 to remove the oil bubble following vitrectomy to remove blood out of his left eye.
Dr. Solomon related that appellant would require four to six weeks off of work and that he would
not be able to drive or lift during the healing process.
By decision dated December 31, 2019, OWCP accepted that the October 2, 2019
employment incident occurred as alleged, but denied appellant’s claim, finding that the medical
evidence of record did not provide a medical diagnosis causally related to the accepted incident.
On April 15, 2020 appellant requested reconsideration of OWCP’s December 31, 2019
decision and submitted additional medical evidence.
In a letter dated November 15, 2019, Dr. Solomon related that appellant has diabetic
bilateral retinopathy, which did not alter his ability to perform his daily work activities. However,
on October 2, 2019 appellant suffered a vitreous hemorrhage, which was associated with heavy
lifting at work. He further noted that the specific weight and strain contributed to the bleed in his
eye.
In a February 5, 2020 amendment to his November 15, 2019 letter, Dr. Solomon related
that appellant reported lifting a heavy box at work and that the vitreous hemorrhage occurred after
this event. He stated that the Valsalva maneuver was likely a contributing factor to the event.
By decision dated May 20, 2020, OWCP modified, its December 31, 2019 decision to find
the medical evidence of record was sufficient to establish a diagnosed condition. However, the
claim remained denied as the evidence of record was insufficient to establish that his diagnosed
vitreous hemorrhage was causally related to the October 2, 2019 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA,4 that an injury5 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 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 specific employment factors
identified by the employee.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not established that his left eye vitreous hemorrhage
was causally related to the accepted October 2, 2019 employment incident.
In his initial report dated October 3, 2019, Dr. Solomon indicated that appellant noticed a
blood like tear in his left eye on October 2, 2019. He diagnosed left eye vitreous hemorrhage and
preexisting bilateral proliferative diabetic retinopathy; however, he did not provide an opinion
regarding the cause of the diagnosed conditions. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.12 Therefore, this report is insufficient to
establish the claim.
In a letter dated November 15, 2019, Dr. Solomon noted appellant’s preexisting history of
bilateral proliferative diabetic retinopathy. In addition, he related that on October 2, 2019
appellant sustained a vitreous hemorrhage, which was associated with heavy lifting at work.
Dr. Solomon further noted that the specific weight and strain attributed to the bleed in his eye.
However, he failed to provide a rationalized medical opinion, which differentiated between the
effects of the preexisting condition and the accepted incident in causing appellant’s left eye
hemorrhage. The need for a rationalized medical opinion was particularly important because
appellant had preexisting bilateral diabetic retinopathy condition.13 This report is, therefore,
insufficient to establish the claim.
Similarly, in the February 5, 2020 amendment to his prior report, Dr. Solomon again noted
that heavy lifting was likely a contributing factor to appellant’s vitreous hemorrhage. While he
noted that the Valsalva maneuver “likely” was a contributing factor to his eye hemorrhage, he did
not explain how this mechanism could have physiologically caused the diagnosed conditions. The
Board has held that medical opinions that are speculative or equivocal are of diminished probative
value.14 Moreover, the Board has held that generalized statements do not establish causal
relationship as they are unsupported by adequate medical rationale explaining the
pathophysiologic mechanism by which the accepted employment duties caused, aggravated, or
accelerated the employee’s diagnosed medical conditions.15 Thus, the Board finds that
Dr. Solomon’s amendment is insufficiently rationalized to the claim.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
J.G., Docket No. 20-0009 (issued September 28, 2020). See also R.D., supra note 11.
14

W.R., Docket No. 20-1101 (issued January 26, 2021); H.A., Docket No. 18-1455 (issued August 23, 2019).

15

See A.P., Docket No. 19-0224 (issued July 11, 2019); K.W., Docket No. 10-98 (issued September 10, 2010).

4

As the medical evidence of record is insufficient to establish causal relationship between
appellant’s eye hemorrhage and the accepted employment incident, the Board finds that appellant
has not met his burden of proof.
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 has not met his burden of proof to establish that his left eye
vitreous hemorrhage was causally related to the accepted October 2, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 29, 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

5


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

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

Docket No. 15-419
Issued: April 27, 2015

Case Submitted on the Record

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

JURISDICTION
On December 15, 2014 appellant filed a timely appeal from a September 29, 2014 merit
decision and a November 12, 2014 nonmerit 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 appellant met his burden of proof to establish an
employment-related injury on July 17, 2014; and, (2) whether OWCP properly refused to reopen
his claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that the actual date of injury was July 16, 2014.
1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted evidence with his appeal to the Board. The Board’s review is limited to evidence that was
in the record at the time OWCP rendered its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 9, 2014 appellant, then a 41-year-old tractor-trailer operator, filed a traumatic
injury claim alleging that on July 17, 2014 he injured his lower back when he slammed onto the
driver’s seat when driving over a bump in the road. He stopped work on August 11, 2014.
Edward Grey, supervisor of distribution operations, challenged the claim. In August 25, 2014
correspondence, Celeste Eckford, a human resources specialist at the employing establishment,
controverted appellant’s claim. She advised that appellant did not work on July 17, 2014 and,
therefore, the accident did not occur in the performance of duty. She stated that appellant
returned to work on July 19, 2014 following military duty, and he worked continuously until
August 9, 2014 when he reported an alleged July 17, 2014 injury. Appellant indicated that he
required surgery which was scheduled for September 11, 2014, and that he had submitted no
medical documentation.
Mr. Grey completed an OWCP Form CA-16, authorization for examination and/or
treatment, on August 11, 2014. He indicated that there was doubt whether the employee’s
condition was caused by employment.
By letter dated August 27, 2014, OWCP informed appellant of the evidence needed to
support his claim. Appellant submitted handwritten notes dated August 9, 2014. He stated that
at approximately 3:45 p.m., he hit a bad bump while driving the postal tractor-trailer at
approximately 40 miles per hour and was launched into the roof of the tractor and landed
extremely hard on the seat. Appellant stated that, after exiting the truck, he tried to walk off the
pain and felt better. He claimed he did not want to stop work because of his financial situation,
but ultimately concluded that his back was too sore to work. Appellant further stated that he had
seen a doctor and did not need any assistance at that time.
A duty status report from a neurosurgeon with an illegible signature dated August 4, 2014
stated that appellant had a herniated lumbar disc and that he could not work due to pain. On
disability slips dated August 11 and 29, 2014 Dr. Ewa Solski, Board-certified in family
medicine, advised that appellant should be off work because he was scheduled for surgery.
On September 3, 2014 Nena Sanders, a health resource manager at the employing
establishment reiterated that the claim was challenged. She again indicated that appellant was
not in pay status on the claimed date of injury. On Thursday, July 17, 2014 appellant was in
leave-without-pay (LWOP) status. Friday, July 18, 2014 was his regularly scheduled day off.
On July 19, 2014 appellant was on military leave, and that Sunday, July 20, 2014, was a
scheduled day off. He returned to work on July 21, 2014 and continued to work until August 3,
2014, at which point he was in LWOP status until he returned to work on August 7, 2014.
Appellant then worked until Saturday, August 9, 2014 when he stopped work and did not return.
On that date, he submitted the claim form.
Ms. Sanders submitted an August 6, 2014 consultation report in which Dr. Kenneth W.
Ward, a Board-certified physiatrist, noted appellant’s complaint of radiating back pain and his
report that the pain began two weeks earlier when he was driving a tractor-trailer at work and
had then visited an emergency room. Physical examination of the lumbosacral spine
demonstrated moderate restricted lumbar extension with pain and tenderness to palpation of the

2

left paraspinals. Dr. Ward reviewed a July 22, 2014 magnetic resonance imaging (MRI) scan of
the lumbar spine that demonstrated a left-sided disc extrusion at L5-S1, evidence of prior
surgery, and right L5-S1 foraminal stenosis due to spondylosis with impingement of the L5
nerve root. He diagnosed acute left S1 radiculopathy, depression, history of lumbar laminotomy,
gait disturbance, and decrease in functional status.
By decision dated September 29, 2014, OWCP denied the claim because the evidence did
not establish that the injury occurred as alleged. Appellant requested reconsideration on
October 20, 2014 and submitted additional medical evidence.
In an August 21, 2014 treatment note, Dr. Peter Navarro, a resident physician in physical
medicine and rehabilitation, reported an eight-month history of low back pain that had increased
since appellant hit a bump in the road while driving a truck several months previously.
Appellant reported previous surgery at L4-5, stating that he was relieved of low back pain until
the recent incident. Dr. Navarro provided physical examination findings, reviewed the MRI scan
study, and diagnosed L5-S1 disc herniation. He noted that appellant would like to proceed with
surgery.
On a discharge summary dated September 29, 2014, Dr. Howard B. Levene, a Boardcertified neurosurgeon, noted that appellant was admitted on September 23, 2014 and that
appellant was discharged the next day with a primary diagnosis of lumbar herniated disc. He
indicated that microdiscectomy surgery was performed on September 23, 2014 and appellant was
discharged with full strength in all extremities and no apparent deficits. On October 10, 2014
Dr. Levene examined appellant in a postoperative neurosurgery clinic visit where he reported
that appellant felt better than before the surgery but still had radiating pain. Dr. Levene stated
that appellant would be discharged after a two-month follow-up visit. Appellant gave him a
history that while at work he was driving his truck and he hit a dip in the road after which he felt
a twinge in his back. This caused him pain. Dr. Levene related that appellant had an MRI scan
study and computerized tomography (CT) scan studies which were consistent with a herniated
disc at L5-S1. He noted appellant’s history of a prior surgery, and advised that this could be an
exacerbation or reherniation of his disc. Dr. Levene concluded, “it is more likely than not that
this herniated or reherniated disc results from his vehicle hitting the large dip in the road which
he described occurring during his work duties.”
In a nonmerit decision dated November 12, 2014, OWCP declined to review the merits of
appellant’s claim. It found the new evidence irrelevant to the issue of whether appellant
sustained an injury in the performance of duty.
LEGAL PRECEDENT -- ISSUE 1
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee/employer relation. Instead, Congress
provided for the payment of compensation for the disability or death of an employee resulting

3

from personal injury sustained while in the performance of his duty.3 The phrase while in the
performance of duty has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers compensation law of arising out of and in the course of
employment.4 In the compensation field, to occur in the course of employment, an injury must
occur: (1) at a time when the employee may be reasonably said to be engaged in the master’s
business; (2) at a place where he or she may reasonably be expected to be in connection with the
employment; and (3) while he or she was reasonably fulfilling the duties of the employment or
engaged in doing something incidental thereto.5 The course of employment relates to the
elements of time, place, and work activity.6 An employee seeking benefits under FECA has the
burden of proof to establish by reliable, probative, and substantial evidence the essential
elements of his or her case.7
ANALYSIS -- ISSUE 1
Appellant’s injury did not occur at a time when one could reasonably say he was engaged
in his employer’s business. On the claim form he indicated that the injury occurred on
July 17, 2014. Both Ms. Eckford and Ms. Sanders of the employing establishment indicated that
appellant was not at work on July 17, 2014. Appellant submitted no evidence substantiating that
he was at work on July 17, 2014, the date of the claimed injury.
Appellant has failed to establish a fundamental element of a FECA claim -- that the
claimed incident occurred at a time when the employee may reasonably said to be engaged in the
master’s business.8 He therefore did not establish that he sustained an injury in the performance
of duty on July 17, 2014.9
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.10 Section 10.608(a) of the Code of Federal Regulations provide that a
3

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

4

D.L., 58 ECAB 667 (2007).

5

See R.C., 59 ECAB 427 (2008).

6

Howard W. Faverman, 57 ECAB 151 (2005).

7

S.B., 58 ECAB 398 (2007).

8

Supra note 6.

9

The Board, however, notes that where, as in this case, an employing establishment properly executes a
Form CA-16 which authorizes medical treatment as a result of an employee’s claim for an employment-related
injury, the Form CA-16 creates a contractual obligation, which does not involve the employee directly, to pay for the
cost of the examination or treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB
608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of
issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c).
10

5 U.S.C. § 8128(a).

4

timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).11 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.12 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.13
ANALYSIS -- ISSUE 2
With his October 20, 2014 reconsideration request, made on an OWCP appeal rights
form, appellant merely checked that he was requesting reconsideration. He did not allege or
contend that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. Consequently, appellant was not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(2).14
With respect to the third requirement under section 10.606(b)(2), appellant submitted
additional medical evidence concerning his lumbar condition and surgery. This evidence is not
relevant to the underlying issue in this case as to whether appellant was in the performance of
duty when the claimed July 17, 2014 incident occurred.15
Appellant has not established that OWCP erred in applying a point of law, has not
advanced a relevant legal argument not previously considered, or submitted relevant and
pertinent new evidence not previously considered by OWCP. OWCP properly denied her
reconsideration request.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

11

20 C.F.R. § 10.608(a).

12

Id. at § 10.606(b)(3).

13

Id. at § 10.606(b).

14

Id. at § 10.606(b)(2).

15

Supra note 6.

5

CONCLUSION
The Board finds that appellant has failed to establish an injury in the performance of duty
on July 17, 2014. The Board further finds that OWCP properly refused to reopen appellant’s
case for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 12 and September 29, 2014 are affirmed.
Issued: April 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 09-09
Issued: February 18, 2009

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 September 3, 2008 appellant filed a timely appeal from a September 3, 2008 decision
of the Office of Workers’ Compensation Programs that denied her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has a back
condition causally related to factors of her federal employment.
FACTUAL HISTORY
This case was previously before the Board. By decision dated May 5, 2008, the Board
found that the medical evidence of record was insufficient to establish that appellant sustained an
employment-related back condition in November 2006 and affirmed an October 2, 2007 Office

decision.1 The law and the facts of the previous Board decision are incorporated herein by
reference.
On August 3, 2008 appellant, through her attorney, requested reconsideration and
submitted a June 19, 2008 report from Dr. Martin Fritzhand, a Board-certified urologist, who
advised that he strongly disagreed with the Board’s decision, stating that appellant had an
employment-related back condition “which would result in considerable pain and discomfort”
when performing work duties. Dr. Fritzhand noted that she remained in pain despite work
restrictions and described the modified duties she was performing in November 2006 and
January 2007. He concluded that “with reasonable medical certainty, there is certainly a causal
relationship between her accidents, operative intervention and the persistence of low back pain
despite the described work medications.”
By decision dated September 3, 2008, the Office denied modification of the prior merit
decision. It found that Dr. Fritzhand’s June 19, 2008 report contradicted his report dated June 1,
2007, noting that he had performed a single physical examination in June 2007 and did not
review her prior medical record.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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
timely filed within the applicable time limitation period 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. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant 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 claimant. The medical
opinion must be one of reasonable medical certainty, and must be supported by medical rationale

1

Docket No. 08-250 (issued May 5, 2008).

2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee).

2

explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related back condition in November 2006. In the June 19, 2008 report,
Dr. Fritzhand opined that appellant’s back condition was employment related and described the
modified duties she was performing in November 2006.9 The medical opinion of a physician
supporting causal relationship does not have to reduce the cause or etiology of a disease or
condition to an absolute certainty but it cannot be speculative and must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.10
While Dr. Fritzhand advised in a June 19, 2008 report that appellant’s continued low
back pain was caused by her November 2006 work activities, he did not provide a firm diagnosis
or explain the mechanics of injury as to how her relatively sedentary duties caused her condition.
A diagnosis of “pain” does not constitute the basis for the payment of compensation.11 The
Board therefore finds that appellant failed to provide sufficient rationalized medical evidence to

5

Solomon Polen, 51 ECAB 341 (2000).

6

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

7

Id.

8

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

9

At the time appellant filed her claim in November 2006, her job duties consisted of flipping letters, one at a
time, so that they were arranged, with a five-pound lifting restriction and no prolonged sitting.
10

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

11

Robert Broome, 55 ECAB 339 (2004).

3

establish that her back condition in November 2006 was caused or aggravated by employment
factors.
CONCLUSION
The Board finds that appellant did not establish that she sustained an employment-related
back condition in November 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2008 be affirmed.
Issued: February 18, 2009
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bell Gardens, CA, Employer
__________________________________________

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

Docket No. 21-0910
Issued: January 12, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 24, 2021 appellant filed a timely appeal from a November 23, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
has elapsed from the last merit decision dated November 6, 2019 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last 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 November 23, 2020, the date of OWCP’s decision, was
May 22, 2021. As this fell on a Saturday, appellant had until the next business day, Monday, May 24, 2021, to file
the appeal. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 23, 2020 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.

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).
FACTUAL HISTORY
On November 2, 2006 appellant, then a 40-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 1, 2006 she fractured her right foot when she
slipped and twisted it while stepping on the vehicle running board in the performance of duty. She
stopped work on November 2, 2006. OWCP accepted the claim for right metacarpal bone fracture
and right plantar fibromatosis. It paid appellant compensation on the supplemental rolls
commencing December 18, 2006. Appellant subsequently accepted a modified job offer as a
carrier technician on March 13, 2007 and returned to work on March 16, 2007. OWCP paid her
wage-loss compensation on the periodic rolls, effective June 7, 2009, after the employing
establishment advised it was no longer able to provide a modified job within her work restrictions.4
On April 22, 2019 OWCP referred appellant, a statement of accepted facts (SOAF), and a
series of questions to Dr. Michael J. Einbund, a Board-certified orthopedic surgeon, for a second
opinion evaluation to determine the status of her accepted conditions, the extent of any disability,
and appropriate treatment. In a May 10, 2019 report, Dr. Einbund provided physical examination
findings and noted that appellant’s accepted conditions were closed right metacarpal bone fracture
and right plantar fibromatosis, which had resolved. He explained that he found no evidence of any
active plantar fibromatosis on examination and that appellant’s fracture had healed without
residuals.
In a June 11, 2019 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon and
OWCP district medical adviser (DMA), reviewed the medical evidence including Dr. Einbund’s
May 10, 2019 report. He agreed with Dr. Einbund’s opinion that appellant’s accepted closed right
metacarpal bone fracture had healed without any residuals and there was no evidence of right
plantar fibromatosis.
On June 24, 2019 OWCP advised appellant of its notice of proposed termination of her
wage-loss compensation and medical benefits as she no longer had disability or residuals due to
her accepted November 1, 2006 employment injury.
In an attending physician’s supplemental report dated July 5, 2019, Dr. Julie Margaret
Fuller, a Board-certified internist, provided examination findings and noted permanent work
restrictions. She diagnosed complex regional pain syndrome type 1, right plantar fasciitis, right
metatarsal fracture sequela, and tingling sensation due to sinus tarsi syndrome. Dr. Fuller reviewed
Dr. Einbund’s opinion and noted her disagreement that the accepted right ankle and foot conditions
had resolved without residuals or disability. She reported that appellant continued to have
symptoms of her November 1, 2006 work injury and required permanent work restrictions.
By decision dated July 26, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that date. It found that the opinion of Dr. Einbund, the second
4

By decision dated July 28, 2010, OWCP granted appellant a schedule award for four percent permanent
impairment of the right lower extremity. The schedule award ran from October 15, 2008 through January 3, 2009.

2

opinion physician who represented the weight of the evidence and established that she no longer
had disability or residuals due to her accepted employment injury.
On August 8, 2019 appellant requested reconsideration.
By decision dated November 6, 2019, OWCP denied modification of its July 26, 2019
termination decision.
On April 22, 2020 appellant requested reconsideration. She argued that Dr. Einbund
provided contradictory statements and, thus, his opinion was insufficient to establish that sh e no
longer had any residuals or disability due to her accepted employment injury.
By decision dated May 7, 2020, OWCP denied appellant’s request for reconsideration.
OWCP subsequently received letters dated July 20, August 3, September 14 and 28, 2020,
wherein the Social Security Administration (SSA) requested that OWCP provide copies of
appellant’s medical records as she had filed an application for disability benefits.
On November 6, 2020 appellant requested reconsideration.
By decision dated November 23, 2020, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA 5 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7

5

5 U.S.C. § 8128(a).

6

Id.; see A.A., Docket No. 20-1564 (issued August 30, 2021); J.C., Docket No. 20-0614 (issued February 10, 2021);
L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017);
W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see A.A., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N.,
Docket No. 08-1569 (issued December 9, 2008).

3

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In her timely request for reconsideration, appellant did not establish that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not
previously considered by OWCP. Consequently, she is not entitled to review of the merits of her
claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 11
Additionally, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. Following the issuance of the May 7, 2020 decision, OWCP
received letters from SSA requesting copies of appellant’s medical records as she had filed for
disability benefits. This evidence, however, is irrelevant as it is not medical evidence. The Board
has held that the submission of evidence that does not address the underlying issue involved does
not constitute a basis for reopening a case. 12 As appellant did not provide relevant and pertinent
new evidence, she is not entitled to a merit review based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 13
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 14

8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4(b).
9

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b) see B.S., Docket No. 20-0761 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
11

F.R., Docket No. 20-1406 (issued March 2, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020); E.W.,
Docket No. 19-1393 (issued January 29, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).
12

E.J., Docket No. 20-0841 (issued February 12, 2021); T.T., Docket No. 19-1624 (issued October 28, 2020);
Edward Matthew Diekemper, 31 ECAB 224 (1979).
13

See R.E., Docket No. 21-0172 (issued June 15, 2021); T.W., Docket No. 18-0821 (issued January 13, 2020).

14

See R.E., id.; J.B., Docket No. 20-0145 (issued September 8, 2020).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 23, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2022
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Mobile, AL,
Employer
__________________________________________

)
)
)
)
)
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)
)
)

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

Docket No. 08-560
Issued: June 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 20, 2007, denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a back condition causally related to factors
of her federal employment.
FACTUAL HISTORY
On August 20, 2004 appellant, then a 36-year-old processing clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained a lumbar herniated disc as a result of her
federal employment. She indicated on the claim form that she was lifting, bending and twisting
during the Christmas mail season and in October and November 2003 at the flat sorting machine

(FSM). The reverse of the claim form indicated that appellant had been working light duty since
December 2003. Appellant first became aware of an employment-related condition on
February 18, 1999.
On September 27, 2004 appellant stated that she aggravated her back at work in
December 1998 and reported it to her supervisor. She indicated that she was diagnosed with a
herniated disc but no claim form was filed. Appellant reported she continued to have back pain.
Appellant submitted an August 19, 2004 report from Dr. Jessica Seematter, a chiropractor, who
recommended that she not work on an FSM due to her chronic L5-S1 disc problem.
Dr. Seematter noted that when appellant was not working on the FSM, her spine would show
occasional misalignments that are correctable with chiropractic adjusting and ergonomic
changes. The record also contains reports from a physician commencing November 24, 2003
recommending light duty.1
By decision dated November 23, 2004, the Office denied appellant’s claim for
compensation. The Office found the medical evidence was insufficient to establish the claim.
Appellant requested reconsideration and submitted treatment notes from Dr. Bendt
Peterson, III, an orthopedic surgeon. In a September 21, 2004 note, Dr. Peterson indicated that
appellant was seen six years earlier for an L5-S1 herniated disc. On January 20, 2005
Dr. Peterson discussed the results of a functional capacity evaluation and indicated that appellant
was restricted to 25 pounds lifting infrequently. In an April 27, 2005 statement, appellant
reported she had been lifting heavy sacks during Christmas 1998 and was treated by Dr. Peterson
on February 18, 1999. Appellant referred to another OWCP File No. “where recently it
reaggravated my injury again.”
In a decision dated June 17, 2005, the Office denied modification of the November 23,
2004 decision, finding the medical evidence was insufficient to establish the claim.
Appellant again requested reconsideration of her claim. In a report dated March 10,
2006, Dr. John Semon, an orthopedic surgeon, reported appellant had a long history of back pain
which she stated began after a work-related injury in December 1998. He diagnosed acute
cervical strain, chronic low back pain syndrome and probable anxiety. In a report dated June 7,
2005, Dr. Seematter recommended that appellant have a back supported chair at work.
By decision dated August 14, 2006, the Office denied modification of the June 17, 2005
decision based on the lack of probative medical evidence.
Appellant requested reconsideration on August 13, 2007. She submitted an August 10,
2007 report from Dr. Daniel Koch, a psychologist, who stated that he initially treated appellant
on June 24, 2005 for complaints of stress and depression. He reviewed appellant’s medical
history and stated that she was a chronic pain patient. Dr. Koch stated that appellant had a
herniated disc and over time was apparently developing cervical strain problems as well.

1

The signature of the physician is illegible.

2

In a decision dated September 20, 2007, the Office denied modification of the August 14,
2006 decision as the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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 claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
Appellant has identified activities in her federal employment such as lifting, bending,
twisting, pushing and reaching as contributing to her back condition. It noted that she originally
injured her back while lifting in December 1998, resulting in an L5-S1 herniated disc, with
subsequent aggravations caused by her continuing work activities.8 The burden of proof is on
appellant to submit medical evidence that contains a complete and accurate background, a

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

Appellant referred to another claim filed, but the nature of the other claim is not clear from the record.

3

diagnosis and a rationalized medical opinion on causal relationship between the diagnosed
condition and the identified employment factors.
The medical evidence of record is not sufficient to meet appellant’s burden of proof.
Neither Dr. Peterson, Dr. Semon, Dr. Koch nor any physician of record provides a rationalized
medical opinion on the issue of causal relation. Dr. Peterson noted in September 2004 that he
had treated appellant six years prior for a herniated disc, without discussing causal relationship
with employment. As to work restrictions in 2005, he provided no diagnosis or opinion as to
causal relationship with the identified employment factors. Dr. Koch reported appellant’s history
showed chronic back pain, without discussing the relevant orthopedic issues. None of the
physicians provides a complete history discussing appellant’s employment duties or provides an
opinion with supporting medical rationale as to how her work caused or contributed to her
claimed condition. The Board accordingly finds that appellant did not meet her burden of proof
and the Office properly denied the claim for compensation.
CONCLUSION
Appellant did not meet her burden of proof to establish a back condition causally related
to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 20, 2007 is affirmed.
Issued: June 20, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4