United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Allemands, LA, Employer
__________________________________________

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

Docket No. 09-465
Issued: August 25, 2009

Case Submitted on the Record

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

JURISDICTION
On November 26, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 4, 2007 and September 25, 2008 merit decisions denying
her traumatic injury 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 a traumatic injury while in the performance of
duty on November 20, 2006.
FACTUAL HISTORY
On October 8, 2007 appellant, a 57-year-old part-time flex (PTF) clerk, filed a traumatic
injury claim (Form CA-1) alleging that on November 20, 2006, she sustained an injury to her
right knee when she tripped and fell. The employing establishment controverted the claim,
noting that she did not report the alleged incident for more than 30 days.

Appellant submitted November 7, 2006 treatment notes from Dr. Christopher Cenac, Sr.,
a Board-certified orthopedic surgeon, who diagnosed right knee pain and arthrosis of the right
knee. In January 26, 2007 notes, Dianne G. Garardi, a physical therapist, stated that on
December 4, 2006 appellant reported increased right knee pain which started after she “stepped
down wrong off a step” two weeks earlier. On December 19, 2006 appellant told her that
appellant had sustained an abrasion to her right knee when she fell at work on
December 15, 2006. In a December 16, 2006 return-to-work certificate, Dr. Kyle Guidy, a
treating physician, diagnosed syncope and indicated that appellant could return to full duty.
On November 1, 2007 the Office notified appellant that the evidence submitted was
insufficient to establish her claim and advised her to provide, within 30 days, additional
documentation, including a firm diagnosis and a physician’s opinion as to how her injury
resulted in the diagnosed condition. It asked appellant to provide a detailed description as to
how the injury occurred, including the cause of the injury, statements from any witnesses or
other documentation supporting her claim and the reason she delayed seeking medical treatment.
Appellant did not respond.
In a December 4, 2007 decision, the Office denied appellant’s claim. It found that the
evidence was insufficient to establish that the claimed incident occurred as alleged, or that
appellant had a diagnosed condition which could be connected to the claimed event.
On January 2, 2008 appellant requested an oral hearing, which was held on July 23, 2008.
She stated that on the date of the alleged incident, she had just returned to work following
nonwork-related arthroscopic surgery on her right knee.
Appellant testified that on
November 20, 2006, she “made a misstep right on [the] edge” of a concrete slab in front of a
mailbox.1 She allegedly fell to the ground and struck her right knee. When appellant reported
the incident to her postmaster, Sharon Smith, she was advised that “it would [not] look good” if
she reported an accident after having just returned to work. She further testified that she reported
to work the day following the incident, but had difficulty working due to pain. Appellant sought
medical treatment with Dr. Cenac two days after the incident. On February 21, 2007 Dr. Cenac
performed total knee replacement surgery.
The record contains an August 23, 2006 operative report, reflecting that appellant
underwent arthroscopy, debridement of the medical compartment and medial meniscectomy of
the right knee on that date. She submitted notes from Ms. Girardi, a physical therapist, for the
period October 9, 2006 through January 8, 2007. Appellant’s history revealed an injury to her
right knee in 2002 with increasing pain over the next four years, such that she underwent right
knee arthroscopic surgery. She continued to experience right knee pain, which was exacerbated
by her duties as a mail clerk. On January 8, 2007 appellant stated that she fell at work on
December 15, 2006 and hit her right knee. The record contains a June 14, 2006 report of a
magnetic resonance imaging (MRI) scan of the right knee, which reflected a torn medical
meniscus and focal arthritic disease.
The record contains hospital admission forms, diagnostic test results, physicians’ notes
and reports of MRI scans for the period January 11 through February 26, 2007. On January 19,
1

The record contains photos of two mailboxes, which are atop a concrete slab adjacent to a sidewalk.

2

2007 Dr. Sandeep A. Patel, a Board-certified internist, specializing in cardiovascular diseases,
stated that appellant was cleared for right knee surgery, which was scheduled for
January 21, 2007. On February 21, 2007 Dr. Cenac stated that appellant’s January 11, 2007 MRI
scan showed advanced degenerative changes in the medial compartment of the right knee. He
advised that appellant was scheduled for total knee replacement surgery. On February 21, 2007
Dr. Cenac performed a total right knee replacement, with a preoperative diagnosis of right knee
arthrosis. In a February 22, 2007 report, Dr. Steven Youngblood diagnosed hypertendion,
anticoagulation, dyslipidemia, restless leg syndrome, fibromyalgia and hyperglycemia.2 In a
September 25, 2008 decision, an Office hearing representative affirmed the denial of appellant’s
claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”5
An employee seeking benefits under the Act has the burden of proof to establish 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 or specific condition for which compensation is claimed is
causally related to the employment injury.6 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” namely, he
must submit sufficient evidence to establish that he experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
2

The Board notes that the record contains an undated occupational disease claim (Form CA-2), received by the
Office on August 12, 2008, wherein appellant alleges that she sustained injuries to her left knee due to employment
activities. Appellant’s occupational disease claim is not before the Board on this appeal.
3

5 U.S.C. §§ 8101 et seq.

4

5 U.S.C. § 8102 (a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
6

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

7

See Paul Foster, 56 ECAB 208 (2004). Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54
ECAB 608 (2003). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).

3

circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. 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 a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.11
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a traumatic injury to her right knee on November 20, 2006. Appellant’s
presentation of the facts is not supported by the evidence of record and does not establish her
allegation that a specific incident occurred which caused an injury on the date in question.12
Moreover, there are inconsistencies in the evidence which cast serious doubt on the validity of
her claim.
Appellant initially reported on her October 8, 2007 CA-1 form that she injured her right
knee when she tripped and fell. She provided no detailed account of the incident, as required in a
traumatic injury claim. Appellant subsequently stated that on November 20, 2006, she “made a
misstep right on [the] edge” of a concrete slab in front of a mailbox, fell to the ground and struck
her right knee. However, she failed to adequately explain the circumstances of the injury or why
she had delayed for approximately 11 months before reporting it to her employer.
8

See Betty J. Smith, supra note 7.

9

Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

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

12

See Dennis M. Mascarenas, supra note 10.

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Appellant’s subsequent course of action also fails to support her claim. She did not seek
medical treatment for two days following the alleged incident. Moreover, appellant delayed
nearly 11 months in filing her traumatic injury claim. She claims to have immediately informed
her postmaster of the incident. However, the employing establishment denied appellant’s
contention and controverted the claim. Although appellant alleged that the incident was
witnessed by a patron, she did not provide any statements to corroborate her claim from anyone
who either witnessed, or to whom she immediately reported the incident.
Appellant’s claim is further undermined by inconsistencies in the evidence. In her CA-1
form, she alleged that she injured her right knee when she tripped and fell on
November 20, 2006. However, on December 19, 2006 and January 8, 2007, appellant informed
her physical therapist that she sustained an abrasion to her right knee when she fell at work on
December 15, 2006.
The medical evidence of record casts further doubt as to the validity of appellant’s claim.
The record reflects that she sustained an injury to her right knee in 2002 and that she underwent
arthroscopy, debridement of the medical compartment and medial meniscectomy of the right
knee on August 23, 2006, three months prior to the alleged work incident. Appellant had just
returned to work following nonwork-related arthroscopic surgery on her right knee when she
allegedly fell on her right knee on November 20, 2006. On February 21, 2007 Dr. Cenac
diagnosed right knee arthrosis. He stated that appellant’s January 11, 2007 MRI scan showed
advanced degenerative changes in the medial compartment of the right knee and recommended a
total right knee replacement. While the evidence reveals a long history of treatment for
appellant’s right knee condition, there is no medical evidence of record which recorded a history
of her November 20, 2006 right knee incident while at work. The record does not contain a
medical report from any physician, as defined by the Act, which contains any reference to the
alleged November 20, 2006 incident.13
Appellant has failed to establish the fact of injury, she did not submit sufficient evidence
to establish that she actually experienced the employment incident at the time, place and in the
manner alleged or that the alleged incident caused her right knee condition. Therefore, the Board
finds that she has not met her burden of proof to establish that she sustained an injury in the
performance of duty on November 20, 2006.14
On appeal, appellant’s representative contends that the Office’s September 25, 2008
decision was contrary to the fact and law. For reasons stated above, the Board finds the
representative’s argument to be without merit.

13

Physical therapists do not qualify as “physicians” under the Act. Section § 8101(2) of the Act provides as
follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law.”
14

As appellant failed to establish that the claimed event occurred as alleged, it is not necessary to discuss the
probative value of medical evidence. Id.

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CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury to her right knee in the performance of duty on November 20, 2006.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2008 and December 4, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 25, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
PUBLIC WORKS CENTER, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 08-1880
Issued: January 21, 2009

Case Submitted on the Record

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

JURISDICTION

On June 26, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing loss decision dated April 18, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award.
ISSUE
The issue is whether appellant has more than an 18 percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On August 2, 2002 appellant, then a 48-year-old environmental protections specialist,
filed an occupational disease claim alleging that he sustained a hearing impairment as a result of
working in an environment with excessive noise in the performance of duty.

On March 3, 2004 appellant filed a claim for a schedule award and retired on
December 31, 2004.
On April 10, 2007 the Office accepted appellant’s claim for subjective tinnitus due to his
employment-related noise exposure and bilateral sensorineural hearing loss. In a letter dated
July 11, 2007, it requested that appellant submit additional factual and medical evidence.
A September 6, 2007 report from Dr. Alan S. Keyes, a Board-certified otolaryngologist,
indicated that appellant had a normal audiogram in 1965. Dr. Keyes advised that appellant had
sensorineural loss in excess of what would normally be predicted on the basis of presbycusis. He
diagnosed noise-induced sensorineural hearing loss and opined that appellant’s workplace
exposure was sufficient to have caused the loss in question. Dr. Keyes also recommended
bilateral hearing aids. He referred to the September 6, 2007 audiogram which reflected testing at
frequency levels including those of 500, 1,000, 2,000 and 3,000 cycles per second (cps) and
revealed decibel losses on the left of 20, 25, 40 and 60 respectively and on the right of 20, 25, 45
and 70 respectively.
On February 8, 2008 an Office medical adviser utilized the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A.,
Guides), to determine if appellant’s bilateral sensorineural hearing loss was ratable for schedule
award purposes. She utilized Dr. Keyes’ results and referred to Tables 11-1 and 11-21 and
determined that appellant had a 22.5 percent monaural hearing loss in the right ear, 16.85 percent
hearing monaural loss in the left ear and 18 percent binaural hearing loss. The Office medical
adviser advised that appellant reached maximum medical improvement on January 31, 2008.
In an April 18, 2008 decision, the Office awarded appellant a schedule award for 18
percent binaural hearing loss. The award covered a period of compensation from March 23 to
July 26, 2006.
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.2 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 A.M.A.,

1

A.M.A., Guides 247, 248.

2

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

Guides as the appropriate standard for evaluating schedule losses.3 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.7 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.8 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.9 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.10
ANALYSIS
The Office medical adviser properly applied the Office’s standardized procedures to the
September 6, 2007 audiogram and results from Dr. Keyes, which comprised testing for the right
ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps, and revealed decibel losses of 20,
25, 45 and 70 respectively. The Board notes that, for the right ear, these decibel losses equate to
a total of 160 decibels, which when divided by four to obtain the average, equates to an average
hearing loss of 40 decibels. This average loss reduced by 25 decibels (25 decibels being
discounted as discussed above) is equal to 15. The Board notes that this figure when multiplied
by 1.5 would result in 22.5 percent value for a monaural loss. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 25, 40 and 60
respectively. These decibel losses total 145 decibels and when divided by four result in an
average hearing loss of 36.25 decibels. This average loss when reduced by 25 decibels (25
decibels being discounted as discussed above) equals 11.25 for the left ear. This value
multiplied by 1.5 would result in a 16.875 monaural impairment. The 16.875 value for the left
ear (the lesser value) multiplied by 5 would equate to 84.375 and would be added to 22.5 and
result in 106.875, which would be divided by 6 and result in a 17.8125 percent binaural hearing
loss. It is proper Office policy to round the calculated percentage of impairment to the nearest
3

20 C.F.R. § 10.404 (2006).

4

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

5

A.M.A., Guides 226-51 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

10

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

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whole number.11 Fractions are rounded down from 0.49 and up from 0.50.12 The Board finds
that this would result in the 17.8125 being rounded to an 18 percent binaural hearing loss.
Appellant has not established that he sustained a hearing impairment greater than the
previously awarded 18 percent binaural hearing loss for which he received compensation.13
CONCLUSION
The Board finds that appellant has not established that he has more than an 18 percent
binaural hearing loss for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2008 is affirmed.
Issued: January 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008).

12

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

13

Appellant made an additional argument on appeal regarding the date of injury; however, the Board has no
jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB
35 (1952).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 09-2185
Issued: August 5, 2010

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 1, 2009 appellant filed a timely appeal from an August 17, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly rescinded its acceptance of a recurrence
of disability; and (2) whether the Office properly rescinded a wage-earning capacity
determination.
On appeal, appellant asserts that he would have kept his light-duty job if he knew that he
would not receive wage-loss compensation when he voluntarily reduced his work hours. He
contends that the Office penalized him under 5 U.S.C. § 8106(c) for refusing suitable work.

FACTUAL HISTORY
This case has previously been before the Board. By order issued September 24, 2008,1
the Board set aside a May 9, 2007 decision of the Office affirming the termination of wage-loss
compensation predicated on a recurrence of disability, later found not to have occurred. The
Board also set aside June 18 and September 5, 2007 nonmerit decisions denying reconsideration.
The Board remanded the case to the Office as to whether it properly rescinded acceptance of the
recurrence of disability. The facts of the case as set forth in the Board’s order are incorporated
by reference. The relevant procedural history is set forth below.
The Office accepted that appellant, then a 55-year-old part-time regular city carrier,
sustained an acromioclavicular arthrosis of the left shoulder in the performance of duty.2 Prior to
the injury, appellant worked 6 hours a day, five days a week for a total of 30 hours. Effective
July 2, 2002, he accepted a light-duty job offer as a lobby greeter, working 6 hours a day, five
days a week, for a total 30 hours. The job was within prescribed medical restrictions
necessitated by the accepted condition.
In August 2002, the employing establishment abolished all delivery routes. All carriers
bid on a new system of 4-hour days, 20-hour-a-week routes. Appellant bid on and won a 20hour city carrier route effective August 24, 2002. He relinquished his light-duty greeter job on
August 23, 2002 to begin work as a letter carrier.
On October 17, 2002 appellant claimed a recurrence of disability commencing
August 23, 2002 as the employing establishment abolished his 30-hour position. By decision
dated February 6, 2003, the Office accepted a recurrence of disability commencing
August 23, 2002.
In March 6 and October 17, 2003 letters, the employing establishment contended that it
did not eliminate appellant’s light-duty position in August 2002. Rather, he voluntarily bid on a
new route, reducing his tour hours from 30 to 20 hours a week.
By decision dated May 20, 2004, the Office determined that appellant had a loss of wageearning capacity based on his actual earnings as a city collection carrier, effective
August 23, 2002. It paid appellant wage-loss compensation for 10 hours a week, retroactive to
August 26, 2002 and continuing.
Appellant requested reconsideration on September 7, 2004, asserting a pay rate error in
the wage-earning capacity calculation. By decision dated April 24, 2005, the Office denied
modification, finding the May 20, 2004 decision was issued in error as appellant voluntarily
reduced his work hours.

1

Docket No. 08-577 (issued September 24, 2008).

2

The Office initially denied the claim by October 11, 2002 decision. Following further development, it accepted
the claim in December 2002.

2

By notice dated April 24, 2005 and finalized June 15, 2005, the Office terminated
appellant’s monetary compensation as he had no compensable wage loss. During a
November 21, 2005 telephonic hearing held at appellant’s request, he asserted the employing
establishment abolished his light-duty position. By decision dated February 7, 2006, an Office
hearing representative affirmed the June 15, 2005 decision. Appellant again requested
reconsideration on February 5, 2007, asserting a pay rate error in the wage-earning capacity
determination. By decision dated May 9, 2007, the Office denied modification as appellant was
not entitled to wage-loss compensation.3 Appellant again requested reconsideration on June 20
2007, alleging pay rate errors. In a September 5, 2007 decision, the Office denied
reconsideration as appellant’s contentions were irrelevant to the claim.
As noted, the Board set aside the Office’s May 9, June 18 and September 5, 2007
decisions. It remanded the case to clarify whether the Office rescinded acceptance of the
August 23, 2002 recurrence of disability.
By notice dated December 11, 2008, the Office advised appellant that it proposed to
rescind its acceptance of the August 23, 2002 recurrence of disability and the May 20, 2004 loss
of wage-earning capacity determination. Appellant was afforded 30 days to submit additional
evidence or argument. He telephoned the Office on December 17, 2008, asserting pay rate errors
in the wage-earning capacity determination.
In a January 15, 2009 decision, the Office rescinded the February 6, 2003 acceptance of
the recurrence of disability and the May 20, 2004 wage-earning capacity determination. It found
that appellant voluntary changed jobs and reduced his work hours. This did not constitute a
recurrence of disability related to his accepted shoulder condition. The Office further found that
the wage-earning capacity decision was erroneous as it was based on a recurrence which did not
occur.4
In a February 13, 2009 letter, appellant requested a telephonic oral hearing, held
June 2, 2009. During the hearing, he contended that the Office penalized him for refusing
suitable work under 5 U.S.C. § 8106. He acknowledged that he bid voluntarily on the 20-hour
route. Following the hearing, appellant retired from the employing establishment, effective
September 3, 2009.
By decision dated and finalized August 17, 2009, an Office hearing representative
affirmed the January 15, 2009 decision rescinding acceptance of an August 23, 2002 recurrence
of disability and the May 20, 2004 wage-earning capacity determination. The hearing
representative found no evidence supporting a change in the nature and extent of the accepted
condition on or about August 23, 2002. Instead, appellant voluntarily changed jobs and reduced
his work hours. The hearing representative further found that the May 20, 2004 wage-earning
capacity determination was issued in error as it was predicated on a recurrence of disability
which had not occurred.
3

On June 18, 2007 the Office denied appellant’s May 15, 2007 request for reconsideration as it did not identify
the grounds for the request.
4

On February 10, 2009 the employing establishment provided information about appellant’s pay rate.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. This holds true where the Office later decides that it has
erroneously accepted a claim for compensation.5 The Board has upheld the Office’s authority to
reopen a claim at any time on its own motion under 5 U.S.C. § 8128 and, where supported by the
evidence, set aside or modify a prior decision and issue a new decision.6 The Board has noted,
however, that the power to annul an award is not an arbitrary one and that an award for
compensation can only be set aside in the manner provided by the compensation statute.7 In
establishing that its prior acceptance was erroneous, the Office is required to provide a clear
explanation of its rationale for rescission.8
Acceptance of a claim for recurrence of disability is predicated on a claimant establishing
an inability to work after he returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.9 This term also means an inability to
work when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when
the physical requirements of such an assignment are altered so that they exceed her established
physical limitations.10 When a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of the Federal Employees’
Compensation Act.11
ANALYSIS -- ISSUE 1
The Office accepted the August 23, 2002 recurrence of disability based on appellant’s
voluntary reduction of his work hours. Appellant chose a 20-hour-a-week mail route, rather than
continue in the 30-hour-a-week light-duty position provided to accommodate an accepted
shoulder condition. He thereby reduced his work schedule from 30 hours to 20 hours a week.
5

See 20 C.F.R. § 10.610.

6

Eli Jacobs, 32 ECAB 1147 (1981).

7

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

8

Delphia Y. Jackson, 55 ECAB 373 (2004).

9

20. C.F.R. § 10.5(x).

10

Id. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Hubert Jones, Jr., 57 ECAB 467 (2006) (the Board held that elimination of the claimant’s light-duty position due to
a reduction-in-force did not constitute a recurrence of disability). See also Steven A. Andersen, 53 ECAB 367
(2002) (the employee, a purchase and hire employee, was not eligible to receive wage-loss compensation following
his termination due to lack of funding for his crew). Cf. Jackie D. West, 54 ECAB 158 (2002) (the Board held that
the employing establishment created a recurrence of disability by withdrawing the claimant’s light-duty position
because he was medically unable to perform it due to accepted injuries).
11

John I. Echols, 53 ECAB 481 (2002).

4

The employing establishment did not withdraw or eliminate the light-duty job. Appellant
acknowledged that he chose the 20-hour-a-week route rather than continue working in the 30hour-a-week light-duty position.
The Board finds that the reduction in appellant’s work hours was not due to the accepted
left shoulder condition or withdrawal of his light-duty position.12 Rather, appellant voluntarily
bid on and accepted a position for fewer hours. The present case is similar to the circumstances
in John I. Echols.13 The employee claimed a recurrence of disability when he voluntarily retired
from federal employment rather than request a light-duty assignment to accommodate an
accepted injury. The Board held that he did not sustain a recurrence of disability as he was not
forced to retire but voluntarily chose to stop working. In the present case, appellant chose a job
requiring 10 fewer hours a week than his light-duty assignment. This does not constitute a
recurrence of disability. The reduction of hours is not due to the residuals of his accepted
shoulder condition. Therefore, appellant was not entitled to wage-loss compensation. The
Office’s August 17, 2009 decision affirming the rescission of acceptance of the August 23, 2002
recurrence of disability was correct under the law and the facts of this case.
On appeal, appellant asserts that he would have kept his light-duty job if he knew that he
would not receive wage-loss compensation when he chose a new job and reduced his work
hours. The record demonstrates that the job change was his voluntary choice and did not result
in compensable wage loss. Appellant also contends that the Office penalized him under 5 U.S.C.
§ 8106(c) for refusing suitable work. However, the Office did not invoke this provision of the
Act to the facts of this case.
LEGAL PRECEDENT -- ISSUE 2
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination, which
remains undisturbed until properly modified.14
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.15 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.16

12

Jackie D. West, 53 ECAB 158 (2002).

13

Supra note 11.

14

See Sharon C. Clement, 55 ECAB 552 (2004).

15

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

16

Selden H. Swartz, 55 ECAB 272, 278 (2004).

5

ANALYSIS -- ISSUE 2
The Office issued the May 20, 2004 wage-earning capacity determination based on an
August 23, 2002 recurrence of disability that caused a 10-hour weekly wage loss. As set forth
above, it rescinded acceptance of the recurrence. Therefore, the Office relied on the third
criterion for modification, finding that the wage-earning capacity determination was erroneous.
In its January 15 and August 17, 2009 decisions, the Office determined that appellant had
no compensable loss of wage-earning capacity. Appellant chose to change jobs from the 30hour-a-week light-duty position to a 20-hour-a-week full-duty letter carrier position. He
voluntarily reduced his work hours and thereby reduced his wages. Appellant’s wage loss was
unrelated to the accepted shoulder condition. The Office has therefore met its burden of proof to
rescind the May 20, 2004 wage-earning capacity determination.
CONCLUSION
The Board finds that the Office properly rescinded its acceptance of a recurrence of
disability. The Board further finds that the Office properly rescinded its May 20, 2004 wageearning capacity determination as it was issued in error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2009 is affirmed.
Issued: August 5, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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Appearances:
James Noucas, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1747
Issued: September 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant, through his attorney, filed a timely appeal from a
February 21, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a seven percent employment-related
permanent impairment to his right upper extremity.
FACTUAL HISTORY
On July 20, 2007 appellant, then a 52-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2007 he sustained injuries when he fell on a stairway in the
1

5 U.S.C. § 8101 et seq.

performance of duty. OWCP accepted the claim for right shoulder and upper arm contusions,
and closed fracture of two ribs.
Appellant underwent right shoulder arthroscopic surgery on April 20, 2009 to repair a
torn rotator cuff. On the issue of continuing disability, OWCP referred appellant for a second
opinion examination by Dr. John Walsh, Jr., a Board-certified orthopedic surgeon. In a report
dated December 2, 2011, Dr. Walsh opined that appellant’s employment-related diagnoses
included right rotator cuff rupture and chronic right C7 radiculopathy.
With respect to a permanent impairment, appellant submitted a June 29, 2012 report from
Dr. Walsh.2 He stated that, under Table 15-5 of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (sixth edition, hereinafter the A.M.A., Guides), with a
diagnosis of full-thickness tear of the rotator cuff with residual loss, the right arm impairment
was 13 percent.
OWCP referred the case to Dr. Morley Slutsky, an OWCP medical adviser, for an
opinion as to permanent impairment. In a report dated April 2, 2013, an OWCP medical adviser
opined that a proper application of Table 15-5 resulted in a seven percent right arm impairment
for the diagnosed rotator cuff tear.
Appellant submitted a June 6, 2013 report from Dr. Walsh, who stated that it appeared
the main difference between his opinion and Dr. Slutsky’s opinion was the inclusion of
radiculopathy. He stated that he agreed with the seven percent for the rotator cuff tear.
Dr. Walsh stated that the lack of a distinctive structural diagnosis on which to base a diagnosisbased impairment rating made it difficult to rate the right C7 radiculopathy, but under Table 17-2
of the A.M.A., Guides there was a six percent impairment under “single level motion segment
lesions.” In his opinion, this represented the closest diagnostic category on which to base the
rating.
By letter dated June 27, 2013, OWCP advised appellant that a conflict in the medical
evidence existed between Drs. Walsh and Slutsky, and appellant was referred to Dr. Frank Graf,
a Board-certified orthopedic surgeon, for an impartial medical evaluation. Appellant’s
representative submitted a letter dated July 8, 2013, requesting that OWCP ask Dr. Graf whether
the C7 radiculopathy was employment related.
In a report dated July 31, 2013, Dr. Graf provided a history and results on examination.
He diagnosed right chest wall injury with rib fractures, rotator cuff rupture, and axial stretch
injuries to the C7 nerve root. Dr. Graf opined that appellant had a 13 percent impairment under
Table 15-5, and a 4 percent impairment under The Guides Newsletter for C7 radiculopathy with
moderate sensory deficit, for a total of 16 percent impairment of the right upper extremity. In a
report dated November 19, 2013, he stated that the date of maximum medical improvement was
six months after the April 20, 2009 surgery.

2

Although appellant was initially referred to Dr. Walsh for a second opinion examination, the record indicates
that Dr. Walsh subsequently became a treating physician.

2

In a report dated December 1, 2013, Dr. Robert Y. Pick, a second OWCP medical
adviser, opined that appellant’s right arm impairment was seven percent under Table 15-5 of the
A.M.A., Guides. With respect to C7 radiculopathy, the medical adviser stated that the statement
of accepted facts (SOAF) did not mention or reference C7 radiculopathy. The date of maximum
medical improvement was reported as the date of Dr. Graf’s evaluation.
By decision dated February 21, 2014, OWCP issued a schedule award for seven percent
right arm impairment. The period of the award was 21.84 weeks commencing March 10, 2013.3
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
With respect to a shoulder impairment, the A.M.A., Guides provide a regional grid at
Table 15-5. The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then
the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for Functional History (GMFH) Table 15-7, Physical
Examination (GMPE) Table 15-8 and Clinical Studies (GMCS) Table 15-9. The adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).7
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009) is to be applied.8

3

OWCP stated the MMI date was June 29, 2012, but appellant had received compensation through
March 9, 2013.
4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

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

7

A.M.A., Guides 411. The net adjustment is up to +2 (grade E) or -2 (grade A).

8

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

3

ANALYSIS
In the present case, OWCP found there was a conflict under 5 U.S.C. § 8123(a) between
attending physician, Dr. Walsh and an OWCP medical adviser. The Board finds, however, that
there was no conflict in the medical evidence, as Dr. Walsh had not properly applied the A.M.A.,
Guides. In his June 29, 2012 report, Dr. Walsh had incorrectly applied Table 15-5. Under this
table, for the diagnosis provided of rotator cuff injury, full-thickness tear, the default (grade C)
impairment is five percent.9 The maximum (grade E) impairment is seven percent. OWCP
medical adviser used the net adjustment formula and found appellant was entitled to the
maximum seven percent based on grade modifier two for functional history and physical
examination.
In his June 6, 2013 report, Dr. Walsh concurred with the medical adviser as to the seven
percent. He then opined that appellant had a C7 impairment under Table 17-2, but this table is
for cervical spine impairments and provides a whole person impairment. Neither is appropriate
under FECA, as the spine is not a scheduled member and whole person impairments are not
utilized.10 Therefore Dr. Walsh’s reports are insufficient to create a conflict, as their only
disagreement was related to an improper application of the A.M.A., Guides. When a physician
refers to spinal impairments, the opinion is of little probative value and is not sufficient to create
a conflict.11
Therefore OWCP’s referral to Dr. Graf is as a second opinion physician.12 With respect
to his opinion regarding rotator cuff tear, as noted above, Table 15-5 provides a maximum of
seven percent. Dr. Graf incorrectly found the maximum was 13 percent under Table 15-5, as
Dr. Walsh had done in his June 29, 2012. The appropriate maximum impairment, for a rotator
cuff full-thickness tear, is seven percent under Table 15-5.13
The remaining issue is whether there is an additional impairment based on C7
radiculopathy. Dr. Pick, the second medical adviser, states in his December 1, 2013 report that
C7 radiculopathy was not mentioned in the SOAF. Dr. Walsh opined that the radiculopathy was
employment related. There is no indication that Dr. Graf was specifically asked for an opinion
on this issue, but his July 31, 2013 report appeared to consider the C7 radiculopathy as related to
the employment injury. He discussed the diagnosis in connection with other employment-related
injuries and provided an opinion as to permanent impairment.
The case will be remanded to OWCP to request clarification from Dr. Graf regarding
causal relationship between C7 radiculopathy and the employment injury, and any impairment in
9

A.M.A., Guides 403, Table 15-5. The five percent default impairment is for residual loss, functional with
normal motion. The default impairment for residual symptoms without consistent objective findings is three percent.
10

See M.P., Docket No. 14-777 (issued July 18, 2014).

11

G.C., Docket No. 11-82 (issued October 12, 2011).

12

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

13

Supra note 9.

4

accordance with The Guides Newsletter. The Board notes that, under proposed Table 1, the
default impairment for a moderate C7 sensory deficit is two percent, not four percent as reported
by Dr. Graf.14 OWCP should also clarify the date of MMI in this case. In the December 1, 2013
report, Dr. Pick referred to the date of Dr. Graf’s evaluation on July 31, 2013, but OWCP
indicated in its decision that MMI was June 29, 2012, the date of a report from Dr. Walsh. After
such further development as is deemed necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development of the evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 21, 2014 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 14, 2015
Washington, DC

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

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

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

14

The Guides Newsletter “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 21-0829
Issued: January 18, 2022

Case Submitted on the Record

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

JURISDICTION
On May 10, 2021 appellant filed a timely appeal from a November 16, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated January 20, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 20, 2017 appellant, then a 66-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on July 20, 2017 he was trying to push an all-purpose container into the
1

5 U.S.C. § 8101 et seq.

elevator and sustained injury. On the reverse side of the claim form appellant’s supervisor
acknowledged that appellant was injured in the performance of duty. Appellant stopped work on
July 21, 2017.
In a development letter dated July 24, 2017, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It advised him of the type of
factual and medical evidence needed and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
Appellant submitted medical reports dated July 24 and August 10, 2017 from Dr. Craig
Antell, an osteopath Board-certified in physical medicine and rehabilitation. Dr. Antell related
that appellant was seen for lower back, hand, and neck pain. He diagnosed lumbar facet
arthropathy, degenerative disc disease, lumbar, cervical disc disorder, cervical radicular pain, ulnar
neuritis, arthritis of knee, and chondromalacia.
OWCP received an undated attending physician’s report (Form CA-20) from Dr. Antell.
Dr. Antell noted that appellant’s date of injury was July 20, 2017 and indicated by checking a box
marked “Yes” that he believed that appellant’s condition was caused or aggravated by his
employment activity.
By decision dated August 28, 2017, OWCP denied appellant’s claim, finding that he had
not established that the incident occurred as alleged. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
In a December 14, 2017 report, Dr. Antell related that appellant’s job, which entailed
pushing, pulling, and twisting heavy equipment, persistently exacerbated his underlying lumbar
disc disorder, lumbar for set arthrosis, and lumbar radiculitis.
On August 28, 2018 appellant requested reconsideration of OWCP’s August 28, 2017
decision.
Appellant submitted a response to OWCP’s questionnaire. He attested that he was
“turning” a heavy mail container, into the elevator, which aggravated his injuries. Appellant
related that, prior to the accident, he had the following conditions: chronic metatarsalgia; dorsal
tendinitis; and bilateral lower back pain.
By decision dated October 29, 2018, OWCP modified its August 28, 2017 decision to find
that appellant had established that the incident occurred as alleged; however, the claim remained
denied as causal relationship had not been established.
On October 22, 2019 appellant requested reconsideration of OWCP’s October 29, 2018
decision. He submitted a report dated October 10, 2019 from Dr. Antell, who related that appellant
injured his lower back at work on September 24, 2016 while pushing a heavy rolling cart into the
elevator. Dr. Antell indicated that appellant had difficulty turning the cart and overexerted himself,
causing immediate left-sided low back pain with radiation into the left leg. He related appellant’s
diagnoses as subtle degenerative anterolisthesis of L3 on L4, associated with moderate severe left
facet arthropathy and moderate left L3-L4 foraminal narrowing.

2

By decision dated January 20, 2020, OWCP denied modification of its August 28, 2017
decision, finding that appellant has not established that his diagnosed conditions were causally
related to the accepted July 20, 2017 employment incident.
On November 9, 2020 appellant again requested reconsideration of OWCP’s decision. He
submitted an excuse slip from Scott A. Samson, a chiropractor. Mr. Samson related that appellant
suffers from an L4-5 and L5-S1 disc bulge and protrusion, which was verified by a magnetic
resonance imaging (MRI) scan report.
By decision dated November 16, 2020, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA 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. 2
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.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. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 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. 6

2

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
3

20 C.F.R. § 10.606(b)(3); see 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).
4

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 OWCP’s 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). Chapter 2.1602.4b.
5

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

3

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).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, he has not advanced a relevant legal
argument not previously considered. Consequently, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3). 7
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. The underlying issue in this case is causal relationship.
Appellant submitted an excuse slip from his chiropractor. Under section 8101(2) of FECA, the
term “physician” includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist. Dr. Samson is a chiropractor who did not diagnose a spinal
subluxation based on the results of an x-ray, his reports, therefore, do not constitute probative
medical evidence. 8 As the underlying issue is medical in nature, the evidence submitted on
reconsideration is not relevant evidence, thus, the Board finds that appellant was not entitled to a
merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).9
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. 10
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).

7

C.B., Docket No. 18-1108 (issued January 22, 2019).

8

R.P., Docket No. 20-0661 (April 14, 2021).

9

R.L., Docket No. 20-1403 (issued July 21, 2021).

10

J.B., supra note 6; D.G., Docket No. 19-1348 (issued December 2, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2022
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
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, THOUSAND OAKS
POST OFFICE, San Antonio, TX, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1255
Issued: January 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 13, 2019 appellant, through counsel, filed a timely appeal from an April 5, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective May 8, 2017, pursuant to 20 C.F.R. § 10.500(a) based on his earnings had
he accepted a temporary limited-duty assignment.
FACTUAL HISTORY
On April 18, 2014 appellant, then a 64-year-old city mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day he injured his left leg when he fell from the step of
his Long Life Vehicle while in the performance of duty. OWCP accepted the claim for sprain of
the left shoulder and upper acromioclavicular and sprain of left knee and leg. Appellant
subsequently fell on June 16, 2014 injuring the right side of his body. OWCP accepted the injury
as a consequential fall. It expanded acceptance of the claim to include additional conditions of
bilateral tear of the medial meniscus, bilateral old disruption of the anterior cruciate ligaments,
bilateral chondromalacia patellae, bilateral sprain of the hips and thighs, sprain of the left shoulder
and upper arm superior glenoid labrum lesion, other affections of the left shoulder region not
elsewhere classified, disorder of the left bursae tendon shoulder region, and bilateral rupture of
quadriceps tendon. OWCP paid appellant intermittent compensation on the supplemental rolls
from June 14, 2014. Appellant stopped work on September 21, 2014 and has not returned. OWCP
paid him wage-loss compensation on the periodic compensation rolls as of September 21, 2014.
On January 9, 2017 OWCP referred appellant for a second opinion examination with
Dr. Albert E. Sanders, a Board-certified orthopedic surgeon, to determine the status of appellant’s
accepted conditions and work capacity.3 It requested that Dr. Sanders obtain a functional capacity
evaluation (FCE) if necessary. In a report dated February 8, 2017, Dr. Sanders reviewed
appellant’s history of injury along with a statement of accepted facts and the medical record. He
presented his examination findings of the upper and lower extremities, finding that appellant had
weakness in the left quadriceps and mild atrophy, mild tenderness along the bilateral knee joint
lines and greater trochanter, and decreased range of motion of bilateral shoulders and left biceps
atrophy due to the accepted employment-related conditions. Dr. Sanders opined that appellant
may benefit from additional physical therapy and a home exercise program to improve strength
and range of motion in both legs. He also opined that appellant was partially disabled as a result
of the employment injury and was capable of working light duty with restrictions.
In a March 1, 2017 report, Dr. Sanders indicated that appellant had undergone an FCE that
day during which appellant demonstrated reliable effort. In an addendum to his previous
February 8, 2017 report, he related that appellant’s March 1, 2017 FCE demonstrated that
appellant had difficulty performing weight-bearing activities and was unable to lift over 10 pounds.
Dr. Sanders opined that appellant was capable of returning to work in a light-duty capacity with
restrictions, including no lifting, pushing, or pulling over 20 pounds; no standing/walking/
stooping/overhead reaching more than 2 hours; and avoiding activities such as kneeling, squatting,
bending, etc.
3
In 2015 and 2016, appellant also underwent OWCP-directed second opinion examinations and was found capable
of working full time with restrictions.

2

Dr. Sanders also completed a March 6, 2017 work capacity evaluation (Form OWCP-5c)
indicating that appellant had temporary restrictions for full-time light duty. This included a twohour limitation on walking, standing, reaching above shoulder and bending/stooping and a twohour limitation of no more than 20 pounds on pushing, pulling, and lifting. Appellant was
restricted from squatting, kneeling, and climbing. He related that these restrictions should remain
in place for three months.
In a March 15, 2017 letter, OWCP requested that the employing establishment provide
appellant with a light-duty job within the temporary work restrictions provided by Dr. Sanders,
whose opinion represented the weight of the medical evidence.
Also, on March 15, 2017, OWCP provided a copy of Dr. Sanders’ February 8, 2017 report
and March 1, 2017 FCE to Dr. Michael Charlton, a Board-certified orthopedic surgeon and
appellant’s treating physician, and requested that he respond to the findings and opinions expressed
by Dr. Sanders as to appellant’s extent of disability and ongoing residuals of the April 18, 2014
employment injury. It afforded Dr. Charlton 30 days to respond.
On March 28, 2017 the employing establishment provided appellant an offer of modified
assignment (limited) duty as a modified city carrier, effective March 30, 2017. Appellant’s duties
included changing parcel locks, changing locks on cluster box units, and Express Mail delivery as
needed. The assignment involved intermittent standing, walking, and reaching above shoulder no
more than two hours. The job offer also noted that it was based upon Dr. Sanders’ temporary
restrictions of no walking, standing bending/stooping, and reaching above the shoulder for more
than two hours, and no more than two hours of pushing, pulling, or lifting up to 20 pounds and no
squatting or kneeling.
In a March 31, 2017 letter, the employing establishment noted that appellant reported to
work on March 30, 2017 and that he saw a union official. It noted that he refused the position.
The employing establishment confirmed that the job remained available.
In a notice dated April 7, 2017, OWCP proposed to reduce appellant’s compensation based
on his refusal of the March 28, 2017 light-duty offer. It advised him that it had reviewed the work
restrictions provided by Dr. Sanders and found that it represented the weight of the medical
evidence. OWCP further determined that the position offered appellant was within his restrictions.
It informed him of the provisions of 20 C.F.R. § 10.500(a) and advised him that any claimant who
declined a temporary light-duty assignment deemed appropriate by OWCP was not entitled to
compensation for total wage loss. OWCP calculated that appellant’s compensation should be
adjusted to $1,151.13 every four weeks using the formula set forth in Albert C. Shadrick,4 which
was equal to or greater than the current pay of the job held at the time of injury; therefore, there
was no loss of wage-earning capacity (LWEC). It afforded appellant 30 days to accept the
assignment and report to duty or provide a written explanation of his reasons for not accepting the
job assignment.

4

5 ECAB 376 (1953); see 20 C.F.R. § 10.403.

3

On May 8, 2017 the employing establishment advised that appellant had not reported to
work. It also verified that the light-duty job offer remained available.
By decision dated May 8, 2017, OWCP terminated appellant’s wage-loss compensation,
effective that day, because he failed to accept the March 28, 2017 temporary light-duty assignment
in accordance with 20 C.F.R. § 10.500(a). It noted that he had not accepted the modified job offer,
which was within the restrictions provided by Dr. Sanders in his February 8, 2017 report. OWCP
further noted that it had not received any additional evidence or argument to support his refusal of
the light-duty job offer. It noted that, as described in the April 7, 2017 notice of proposed
termination, appellant’s actual earnings in that assignment would have met or exceeded the current
wages of the job held when injured; therefore, appellant would have sustained no wage loss had
he accepted the assignment. Since he would have sustained no wage loss had he accepted the
assignment, OWCP determined that he was not entitled to compensation.
In a May 18, 2017 report, appellant’s physician, Dr. Charlton, indicated that he concurred
with Dr. Sanders’ assessment of appellant.
On June 5, 2017 appellant requested an oral hearing before an OWCP hearing
representative. In a November 3, 2017 letter, he noted his disagreement with the FCE and
Dr. Sanders’ examination, which he indicated was an unfair and biased medical examination.
Appellant further indicated that he had reported to work on March 30, 2017 and was asked by a
supervisor if he was there to work, to which he replied that “I am here. I have not heard from my
doctor.” He noted that the supervisor then told him to go home and that he would get back to him.
Appellant indicated that he never heard back. When he called OWCP on or about May 30, 2017
about the assignment, he was told that his file had been transferred.
OWCP received copies several diagnostic imaging reports from 2014, 2016, and 2017.5
In an April 17, 2017 report, Kenneth P. Rivera, a physician assistant, provided an
assessment of chronic bilateral knee pain and weakness with possible chronic regional pain
syndrome. He indicated that appellant either needed a modified job or that he needed to retire.
In June 13 and 30, 2017 OWCP-5c forms, Dr. Andrew J. Sheean, an internal medicine
specialist, indicated that appellant had permanent restrictions for sedentary work.
A telephonic hearing was held on November 7, 2017. By decision dated January 8, 2018,
an OWCP hearing representative affirmed OWCP’s May 8, 2017 termination of wage-loss
benefits. The hearing representative found that although appellant had returned to the employment
5
A July 16, 2014 x-ray of appellant’s right knee noted severe soft tissue swelling of right knee and increased joint
effusion. An August 2, 2016 magnetic resonance imaging (MRI) scan of his lumbar spine, noted multilevel
degenerative changes, and mild bilateral due to disc bulge at several levels. A February 2, 2017 computerized
tomography (CT) scan of appellant’s pelvis and hip, detailed chronic findings. A March 23, 2017 MRI scan of his
left knee noted an impression of status post quadriceps tendon repair with underlying quadriceps tendinopathy; patellar
tendinopathy; prepatellar soft tissue mass; and moderate-to-severe chondromalacia in three compartments. A
March 23, 2017 MRI scan of appellant’s right knee noted essentially normal findings and a March 23, 2017 MRI scan
lower extremity of his bilateral thighs noted a high signal intensity in both sartorius, both rectus morris, and left
semitendinosus muscles.

4

establishment pursuant to the temporary job offer, his comments and behavior were not reflective
of acceptance of the offered position.
On January 7, 2019 OWCP received counsel’s request for reconsideration. Counsel
provided opinions, along with appellant’s December 21, 2018 statement, as to why appellant could
not work the March 28, 2017 job offer. He argued that Dr. Sanders’ report needed clarification as
a discrepancy existed between his OWCP-5c, which indicated that appellant could provide two
hours of bending and his report, which indicated that appellant should avoid bending.
Furthermore, while the FCE demonstrated that appellant was unable to lift over 10 pounds,
Dr. Sanders provided a 20 pounds lifting restriction. Counsel indicated that as the job offer did
not have a 10-pound lifting limitation or a prohibition on bending, the March 28, 2017 modified
city carrier position exceeded appellant’s physical abilities and, therefore, was not suitable.
By decision dated April 5, 2019, OWCP denied modification of its January 8, 2018
decision.
LEGAL PRECEDENT
OWCP regulations at section 10.500(a) provide in relevant part:
“(a) Benefits are available only while the effects of a work-related condition
continue.
“Compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents [him or her]
from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for any wage loss claimed on a [Form]
CA-7 to the extent that evidence contemporaneous with the period claimed on a
[Form] CA-7 establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that the employee
was previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not prevented
from earning the wages earned before the work-related injury if the evidence
establishes that the employing [establishment] had offered, in accordance with
OWCP procedures, a temporary light-duty assignment within the employee’s work
restrictions.”6
When it is determined that an appellant is no longer totally disabled from work and is on
the periodic rolls, OWCP’s procedures provide that the claims examiner should evaluate whether
the evidence of record establishes that light-duty work was available within his or her restrictions.
The claims examiner should provide a pretermination or prereduction notice if appellant is being
removed from the periodic rolls. When the light-duty assignment either ends or is no longer

6

20 C.F.R. § 10.500(a).

5

available, the claimant should be returned to the periodic rolls if medical evidence supports
continued disability.7
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective May 8, 2017, pursuant to 20 C.F.R. § 10.500(a), based on his earnings
had he accepted a light-duty assignment.
OWCP relied upon the findings of Dr. Sanders, the second opinion physician, to determine
that the temporary modified letter carrier position offered to appellant on March 28, 2017 was
within appellant’s medical restrictions. In his report dated February 8, 2017, Dr. Sanders indicated
that appellant had residuals from the employment injury and that he may benefit from additional
physical therapy and a home exercise program to improve strength and range of motion in both
legs. He also opined that appellant was partially disabled as a result of the employment injury, but
was able to work light duty with restrictions. At OWCP’s request, Dr. Sanders obtained an FCE
and thereafter in a March 1, 2017 report indicated that appellant’s March 1, 2017 FCE
demonstrated that appellant was unable to lift any objects over 10 pounds. The FCE evaluation
report also indicated that appellant could not stoop or bend.
Dr. Sanders, however, then completed a Form OWCP-5c on March 6, 2017 and related,
without explanation, that appellant was capable of lifting up to 20 pounds and that he could
perform bending activities with a two-hour limitation. Once OWCP accepts a claim and pays
compensation, it has the burden of proof to justify termination or modification of compensation
benefits.8 As Dr. Sanders provided inconsistent work restrictions, to meet its burden of proof
OWCP should have clarified appellant’s ability to lift up to 20 pounds and bend for up to two
hours a day, before finding that the temporary job offer, was within appellant’s work restrictions.9
The Board, therefore, finds that OWCP improperly terminated appellant’s wage-loss
compensation, effective May 8, 2017, without clarification regarding Dr. Sanders’ limitations on
lifting and bending. Due to this lack of clarity, OWCP failed to meet its burden of proof to
terminate his compensation benefits.10

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(c)(1)
(June 2013).
8

C.C., Docket No. 19-0241 (issued August 12, 2019).

9

Supra note 7.

10

See D.T., Docket No. 19-0579 (issued October 22, 2019); E.G., Docket No. 18-0710 (issued February 12, 2019);
R.W., Docket No. 16-1053 (issued December 6, 2016); see J.R., Docket No. 13-0720 (issued October 21, 2013);
Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M. Crenshaw, Jr., 40 ECAB 919, 922-23 (1989).

6

CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective May 8, 2017, pursuant to 20 C.F.R. § 10.500(a), based on his earnings
had he accepted a temporary light-duty assignment.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: January 24, 2020
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., claiming as widow of O.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DANVILLE NATIONAL CEMETERY,
Danville, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0916
Issued: September 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 20, 2017 appellant filed a timely appeal from an October 21, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that the
employee’s death on March 13, 2016 was causally related to his accepted May 1, 1978
employment injuries.
On appeal appellant contends that the medical opinion of Dr. Ashley Norris, an attending
Board-certified internist, establishes that the employee’s death was caused by his work-related
injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to the employee’s schedule
award claim. The facts of the case as set forth in the prior Board decision are incorporated
herein by reference. The facts relevant to the present appeal are set forth below.
OWCP accepted that on May 1, 1978 the employee, then a 29-year-old cemetery keeper,
sustained internal derangement and torn medial meniscus of the right knee when he stepped in a
hole while mowing along a fence line. He stopped work on May 2, 1978.
The employee underwent authorized right knee fusion on October 11, 1982. On April 28,
1985 he returned to limited-duty work as an engineering technician at the employing
establishment. The employee stopped work on June 3, 1985 due to his physical inability to
perform certain job requirements.
In a February 23, 1988 decision, OWCP granted the employee a schedule award for 61
percent permanent loss of use of the right leg.
The employee appealed to the Board on April 28, 1988. In a September 30, 1988
decision, the Board affirmed OWCP’s February 23, 1998 schedule award decision, finding that
the employee had no more than 61 percent permanent impairment of the right leg.2
The record reflects that OWCP continued to pay the employee appropriate wage-loss
compensation benefits after expiration of his schedule award payments. The employee also
continued to submit reports required by OWCP certifying that he was not employed. OWCP
also received periodic medical reports noting the employee’s treatment and status.3
On March 22, 2016 appellant, widow of the deceased employee, informed OWCP that
the employee died on March 13, 2016.
On June 1, 2016 appellant filed a claim for compensation by widow, widower, and/or
children (Form CA-5). She alleged that the employee’s debilitating knee injury and total knee
fusion caused his death.
In support of her claim, appellant submitted a certificate of marriage, a death certificate,
and an itemized bill for funeral services for the employee. The death certificate indicated that
the employee died on March 13, 2016 and that the immediate cause of death was cardiac
dysrhythmia. It noted that other conditions contributing to death, but not resulting in the
underlying cause previously noted, included diabetes, hypertension, and heart disease.

2

Docket No. 88-1133 (issued September 30, 1988).

3

These included a March 16, 2012 report from Dr. David A. West, a Board-certified orthopedic surgeon and
OWCP referral physician, who noted that the employee was currently wheelchair bound and weighed 505 pounds.
He indicated that the employee remained totally disabled due to his work injury. In a February 10, 2014 report,
Dr. Norris noted treating the employee for morbid obesity, his right knee condition, diabetes, and abnormal cardiac
rhythms.

2

By letter dated June 23, 2016, OWCP informed appellant of the deficiencies of her claim
and requested that she submit additional medical and factual evidence. It requested that the
employing establishment provide all available assistance to appellant to obtain the supporting
documentation necessary to facilitate her claim.
In a July 16, 2016 letter, Dr. Norris noted that she was the employee’s primary care
physician and saw him in both the hospital and office numerous times during the past several
years. She indicated that during his last office visit, he complained about mild stomach cramps
which he attributed to eating too many bowls of beans. Dr. Norris related that he would followup if his condition did not get any better. Dr. Norris noted that the employee’s symptoms
worsened and a family friend placed him on antibiotics for acute diverticulitis. His condition
worsened and he was later brought to an emergency room where she provided treatment.
Dr. Norris and an emergency room physician thought the employee was probably septic from a
gastrointestinal source, likely a perforated bowel. However, Dr. Norris indicated that a
computerized tomography scan could not be performed due to his size. Arrangements were
made to transport the employee to an alternate facility to accommodate his size so that
appropriate imaging could be obtained. At that time, Dr. Norris noted that he arrested and was
intubated. Numerous attempts to resuscitate the employee were unsuccessful. Dr. Norris related
that although his work-related injuries did not cause diverticulitis, they contributed to his overall
health status and largely his morbid obesity. She related that his leg contributed to his growing
weight and limited mobility. Dr. Norris advised that the employee also became a diabetic and
had hypertension. She indicated that his other comorbidities included chronic pain, depression
with anxiety, renal cancer, osteoarthritis, and atrial fibrillation. Dr. Norris concluded that all of
these combined to contribute to the employee’s poor health status and his death.
On August 24, 2016 OWCP requested that an OWCP district medical adviser (DMA)
review the medical record including, Dr. Norris’ report, and a statement of accepted facts
(SOAF). The SOAF provided to the DMA noted a history of the May 1, 1978 employment
injuries, the accepted conditions, and the authorized October 11, 1982 right knee fusion. It also
noted that concurrent disability was not accepted as work related regarding the employee’s right
knee osteoarthritis, gout, morbid obesity, pneumonia, May 1, 1978 removal of right knee
cartilage,4 1978 fractured rib, and June 18, 1989 ventral hernia repair.
On September 8, 2016 a DMA reviewed the medical record and the SOAF. She noted
that the employee’s death certificate listed cardiac dysrhythmia as the only immediate cause of
death. The DMA indicated only cardiac dysrhythmia was listed on the death certificate even
though the certificate allows for a listing of multiple conditions and underlying causes. She
maintained that, while Dr. Norris’ July 12, 2016 letter was a thoughtful account of the
employee’s overall health status and events leading to his death, it failed to establish a direct link
between his accepted work-related conditions competent to produce death. The DMA advised
that internal derangement of the knee and/or meniscal tear did not cause cardiac dysrhythmia,
which was the primary cause of the employee’s death. She noted Dr. Norris’ opinion that the
employee’s work injuries may have contributed to his morbid obesity, but related that the SOAF
4

Although the SOAF lists May 1, 1978 as the date of the unrelated surgery, initial medical report from May 1 and
June 16, 1978, advised that the employee had right knee surgery 12 years earlier for removal of a cartilage. The
subsequent SOAF provided to Dr. Barbour, infra, lists the same right knee history.

3

specifically provided that right knee osteoarthritis and morbid obesity, were not accepted
conditions. The DMA, thus, concluded that the accepted right knee condition was not competent
to produce the claimed death.
On September 22, 2016 OWCP referred the medical record, an updated SOAF, and a list
of questions to Dr. Galen L. Barbour, a Board-certified internist and nephrologist, for a second
opinion. The SOAF again noted the history of the May 1, 1978 employment injuries, accepted
conditions, authorized October 11, 1982 right knee fusion, nonaccepted conditions and surgeries.
It also noted that the employee’s preexisting or concurrent medical conditions, which included
renal cancer, atrial fibrillation, hypertension, diabetes mellitus, chronic depression, and anxiety,
were not accepted as work related.
In a September 29, 2016 report, Dr. Barbour reviewed the medical record and SOAF. In
response to queries, he opined that after reviewing the documentation, the employee most likely
died from an undiagnosed myocardial infarction (MI). Dr. Barbour indicated that his presenting
symptom of abdominal pain and ultimate demise from cardiac arrest were consistent with an
acute posterior MI. He related that the employee had a consistent history of several risk factors
for the development of coronary artery disease (CAD) that included hypertension, obesity, and
inactivity. Dr. Barbour advised that in the presence of these risk factors and a clinical picture at
demise consistent with an acute infarction, it was certainly more likely than not that the presence
of known risk factors contributed to the employee’s death. He maintained that although the
physical limitations of a knee fusion likely led him to be inactive and, thus, contributed to his
obesity, such inactivity was not a predictable outcome and was generally accepted as related to
controllable factors. Dr. Barbour referenced medical literature in support of his opinion. In
summary, Dr. Barbour found that the accepted right knee condition was not medically connected
as a predictable cause for the medical conditions of obesity, hypertension, or diabetes. He also
found that because of this lack of connection, it was not possible to accord any aggravation,
precipitation, or acceleration of these conditions by the work-related injury. Dr. Barbour
concluded that the cause of death was most likely an undiagnosed posterior wall myocardial
infarction contributed to by many risk factors including, hypertension, diabetes, and inactivity.
He further concluded that in this clinical scenario, it was not possible to place any causal linkage
between the work-related injury and the cause of death, which was the most common cause of
death in the United States.
By decision dated October 21, 2016, OWCP denied appellant’s claim. It found that the
weight of the medical evidence rested with the opinion of Dr. Barbour that the employee’s death
was not caused by his accepted employment injuries.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.5 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or
on appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
5

5 U.S.C. § 8133(a).

4

employment.6 Appellant has the burden of proof to establish by the weight of the reliable,
probative, and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his or her employment.7 This burden includes the necessity
of furnishing rationalized medical opinion evidence of a cause and effect relationship, based on a
complete factual and medical background.8
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the employee’s death and the
accepted conditions or employment factors identified by the employee.9
ANALYSIS
The Board finds that appellant failed to establish that the employee’s death was causally
related to his May 1, 1978 work-related injury.
OWCP accepted that on May 1, 1978 the employee sustained internal derangement and
torn medial meniscus of the right knee while in the performance of duty. He underwent
authorized right knee fusion on October 11, 1982. The employee briefly returned to limited-duty
work on April 28, 1985 before stopping work on June 3, 1985. Appellant, the employee’s
widow, filed a claim for death benefits on June 1, 2016. She asserted that the employee’s death
was caused by his debilitating knee injury and total knee fusion. On October 21, 2016 OWCP
denied the claim, basing its decision on the September 29, 2016 report of the second opinion
physician, Dr. Barbour.
In support of her claim, appellant submitted a July 16, 2016 report from Dr. Norris, the
employee’s treating physician. Dr. Norris noted that the employee had diverticulitis, morbid
obesity, diabetes, hypertension, chronic pain, depression with anxiety, renal cancer,
osteoarthritis, and atrial fibrillation. She opined that these conditions combined to contribute to
his poor health status and death. The Board notes that none of these noted conditions have been
accepted by OWCP as work related. For conditions not accepted by OWCP as being
employment related, it is the employee’s burden of proof to provide rationalized medical
evidence sufficient to establish causal relation, not OWCP’s burden to disprove such
relationship.10 Dr. Norris related that while the accepted work-related injuries did not cause the
employee’s diverticulitis, they contributed to his overall health status, particularly his morbid
obesity which limited his mobility. However, as noted, OWCP has not accepted morbid obesity
6

See Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

7

L.R. (E.R.), 58 ECAB 369 (2007).

8

Id.

9

Donna L. Mims, 53 ECAB 730 (2002).

10

P.J. (S.J.), Docket No. 15-686 (issued June 15, 2015); E.C., Docket No. 10-1554 (issued April 1, 2011);
Alice J. Tysinger, 51 ECAB 638 (2000).

5

as employment related. Moreover, Dr. Norris did not provide any opinion as to whether the
employee’s morbid obesity and other noted medical conditions were caused or aggravated by the
accepted May 1, 1978 employment injuries prior to his death.11 The physician’s opinion on
causal relationship is of limited probative value as she did not provide adequate medical rationale
in support of her conclusions.12 Thus, the Board finds that appellant failed to meet her burden of
proof as she failed to provide a rationalized, probative medical opinion relating the employee’s
death to the accepted work injuries.
On September 8, 2016 OWCP’s DMA reviewed the medical record and found that while
Dr. Norris’ report provided the employee’s overall health status and events leading to his death,
it did not establish that the accepted employment-related right knee conditions were competent to
produce death. She explained that the accepted work conditions did not cause cardiac
dysrhythmia, the primary cause of the employee’s death. The DMA further explained that the
SOAF she reviewed specifically indicated that right knee osteoarthritis and morbid obesity were
not accepted conditions. In addition, she reasoned that neither cardiac dysrhythmia nor the other
significant conditions contributing to the employee’s death listed on the death certificate were
accepted by OWCP as work related. The DMA concluded that the accepted right knee injury
was not competent to produce his death.
OWCP referred the employee’s case record to Dr. Barbour for a second opinion. In his
September 29, 2016 report, Dr. Barbour reviewed the medical record and SOAF. He opined that
the employee’s death was not caused by the accepted right knee injuries. Dr. Barbour
maintained that his death was more likely than not caused by an undiagnosed posterior wall MI.
He explained that the employee’s presenting symptom of abdominal pain and ultimate death
from cardiac arrest were consistent with an acute posterior MI. Dr. Barbour reasoned that he had
a consistent history of risks for the development of CAD that included hypertension, obesity, and
inactivity. He advised that the accepted right knee conditions were not medically connected as a
predictable cause of these known risks. Dr. Barbour explained that while the employee’s knee
fusion likely led to his physical limitations which resulted in his inactivity and, thus, the
development of his obesity, the inactivity was not a predictable outcome and was generally
accepted as related to controllable factors.
The Board finds that Dr. Barbour’s report represents the weight of the medical evidence
and that OWCP properly relied on his report in finding that the employee’s death on March 13,
2016 was not causally related to the accepted May 1, 1978 work injuries. Dr. Barbour provided
a well-rationalized medical opinion based on a complete factual background and an extensive
and thorough review of the SOAF and medical record. The Board will affirm OWCP’s
October 21, 2016 decision denying compensation for death benefits.
On appeal appellant contends that Dr. Norris’ opinion establishes that the employee’s
death was caused by his work-related injury. However, for the reasons noted above, Dr. Norris
failed to explain with medical rationale how the accepted May 1, 1978 employment injuries

11

P.J. (S.J.), id.; E.C., id.

12

Su-Lan Popow (John S. Popow), Docket No. 00-581 (issued January 18, 2001).

6

caused or aggravated the employee’s conditions that resulted in his death.13 Thus, Dr. Norris’
opinion is insufficient to establish that the employee’s death was caused by the accepted work
injuries.
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 failed to meet her burden of proof to establish that the
employee’s death on March 13, 2016 was causally related to his accepted May 1, 1978
employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 6, 2017
Washington, DC

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

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

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

13

Id.

7