United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, Fort Shafter, HI,
Employer
__________________________________________

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

Docket No. 13-1426
Issued: November 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 29, 2013 appellant filed a timely appeal from a May 10, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained more than a four percent
monaural (left ear) loss of hearing, for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that the injury did not occur over a two-week period from
June 9 to 23, 2011 but had progressed since 2001. He further contends that the May 7, 2012
audiogram showed increased hearing loss and OWCP had the burden of proof to disprove the
report.
FACTUAL HISTORY
On April 6, 2011 appellant, then a 63-year-old police officer, filed an occupational
disease claim (Form CA-2) alleging tinnitus and hearing loss due to factors of his federal
employment. He stated that he was constantly exposed to high noise levels since 2002.
Appellant submitted audiograms dated June 2, 2005 through May 6, 2011 as part of the
employer’s hearing conservation program. In an October 14, 2009 report, Dr. Leslie J. Peters, an
audiologist, diagnosed bilateral, moderate high frequency sensorineural hearing loss. He noted
that appellant had been employed as a police officer since 2002 and was exposed to high-level
impulse noise (gun fire) on a routine basis.
OWCP referred appellant and a statement of accepted facts to Dr. Meredith Pang, a
Board-certified otolaryngologist, for an otologic examination and an audiological evaluation.
Dr. Pang performed an otologic evaluation of appellant on June 9, 2011 and audiometric testing
was obtained on his behalf. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles
per second revealed the following: right ear 5, 15, 30 and 25 decibels; left ear 10, 15, 40 and 45
decibels. Dr. Pang determined that appellant sustained bilateral mild low and right mild and left
mild-to-moderate high frequency sensorineural hearing loss due to noise exposure in his federal
employment. Appellant raised the possibility that his left ear radio, which he wore since 2001,
may have promoted the slightly worse left hearing loss as he already had asymmetric high
frequency hearing loss in 2001.
On July 3, 2011 Dr. David N. Schindler, an OWCP medical consultant and Boardcertified otolaryngologist, reviewed Dr. Pang’s report and the audiometric test of June 9, 2011.
He concluded that in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), appellant had a nonratable
hearing loss in the right ear, a 4 percent monaural hearing loss in the left ear or a 0.6 percent
bilateral hearing loss. Dr. Schindler noted that tinnitus was not rated, a hearing aid for the left
ear was indicated and that the date of maximum medical improvement was June 9, 2011.
By decision dated September 30, 2011, OWCP accepted that appellant sustained bilateral
hearing loss due to workplace exposure to noise. On October 21, 2011 appellant filed a claim for
a schedule award.
By decision dated April 9, 2012, OWCP granted appellant a schedule award for four
percent monaural hearing loss of the left ear. The period of the award was from June 9 to 23,
2011 or 2.08 weeks. OWCP noted that a 4 percent monaural hearing loss produced a greater
schedule award than a binaural hearing loss of 0.6 percent.
On May 1, 2012 appellant requested a review of the written record by an OWCP hearing
representative.

2

By decision dated August 6, 2012, an OWCP hearing representative affirmed the April 9,
2012 decision.
On August 12, 2012 appellant requested reconsideration. He submitted a May 7, 2012
audiogram showing testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second which revealed the following: right ear 10, 20, 30 and 25 decibels; left ear 15, 30, 50 and
60 decibels.
By decision dated May 10, 2013, OWCP denied modification of its August 6, 2012
decision, noting that the May 7, 2012 audiogram was not sufficient to rate appellant’s hearing
loss as it lacked speech testing or bone conduction scores and was not prepared or certified as
accurate by a physician as defined by FECA.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and
the Board has concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.4
ANALYSIS
Dr. Schindler reviewed the report of Dr. Pang, to whom OWCP referred appellant for an
otologic examination and audiological evaluation. Dr. Pang reported that appellant had a
bilateral mild low, a right mild and left mild, moderate high-frequency hearing loss, which was
2

Id.

3

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

4

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

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worse in the left ear. Dr. Schindler concluded that appellant had four percent monaural hearing
loss in the left ear. He properly applied OWCP’s standardized procedures to Dr. Pang’s June 9,
2011 audiogram which recorded frequency levels at the 500, 1,000, 2,000 and 3,000 cycles per
second levels and revealed decibel losses of 5, 15, 30 and 25 respectively in the right ear for a
total decibel loss of 75 on the right. Dr. Schindler followed established procedures and divided
this total by 4 which resulted in an average loss of 18.75 decibels and subtracted the fence of 25
decibels to equal 0 decibels. He then multiplied this by the established factor of 1.5 to result in a
zero percent monaural hearing loss for the right ear. Dr. Schindler properly followed the same
procedure on the left, noting that the test results for the left ear at the frequencies of 500, 1,000,
2,000 and 3,000 cycles per second revealed decibel losses of 10, 15, 40 and 45 decibels
respectively, for a total of 110 decibels. He divided this by 4, for an average hearing loss of 27.5
decibels, subtracted the fence of 25 decibels to equal 2.5 decibels, and multiplied this by the
established factor of 1.5, for a 4 percent monaural hearing loss for the left ear. The report
therefore established that appellant was entitled to a schedule award for a four percent monaural
hearing loss of the left ear.5 In its April 9, 2012 schedule decision, OWCP noted that a 4 percent
monaural hearing loss produced a greater award than a binaural hearing loss of 0.6 percent.
A schedule provides for payment of compensation for a specific number of weeks as
prescribed by the statute.6 With regard to appellant’s contention that he was entitled to a
schedule award for greater than a 4 percent monaural loss of hearing of the left ear, section
8107(c)(13)(A) of FECA provides that for a 100 percent (total) loss of hearing in one ear, a
claimant is entitled to 52 weeks’ compensation.7 Section 8107(c)(13)(B) provides that for a 100
percent loss of hearing of both ears, a claimant is entitled to 200 weeks’ compensation.8 As
appellant sustained 4 percent monaural hearing loss, he is entitled to 4 percent of 52 weeks or
2.08 week’s compensation. The weight of probative medical opinion does not establish a greater
loss.
On appeal, appellant contends that the injury did not occur over a two-week period from
June 9 to 23, 2011 but had progressed since 2001. OWCP did not find that appellant’s injury
occurred over a two-week period, but awarded him compensation in the form of a schedule
award to be paid over a two-week period from June 9 to 23, 2011. Appellant’s claim was
properly adjudicated as an occupational disease.
Appellant further contends that the May 7, 2012 audiogram showed increased hearing
loss and OWCP had the burden of proof. Although he submitted results from audiometric testing
performed on May 7, 2012, the audiogram is insufficient to satisfy appellant’s burden of proof as
it does not comply with the requirements set forth under OWCP. It lacks speech testing and
bone conduction scores and was not prepared or certified as accurate by a physician as defined
by FECA. The audiogram was not accompanied by a physician’s opinion addressing how
appellant’s employment-related noise exposure caused or aggravated any hearing loss. It is
5

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

6

5 U.S.C. § 8107.

7

Id. at § 8107(c)(13)(A).

8

Id. at § 8107(c)(13)(B).

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appellant’s burden to submit a properly prepared and certified audiogram to OWCP.9 OWCP
was not required to rely on this evidence in determining the degree of appellant’s hearing loss as
it failed to constitute competent medical evidence.10
The Board has recognized that a claimant may be entitled to an award for an increased
hearing loss, even after exposure to hazardous noise has ceased, if causal relation is supported by
the medical evidence of record.11 However, the record does not contain an accompanying report
by a physician providing a rationalized medical opinion on causal relationship. Thus, the Board
finds that there is no basis on which to reopen the case for further development or to grant a
schedule award for more than a four percent monaural hearing loss under OWCP’s standardized
procedures.12
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a four
percent monaural hearing loss of the left ear, for which he received a schedule award.

9

See Robert E. Cullison, 55 ECAB 570 (2004); Joshua A. Holmes, 42 ECAB 231, 236 (1990). See also J.B.,
Docket No. 12-607 (issued August 9, 2012).
10

Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued
December 6, 2012).
11

See Paul Fierstein, 51 ECAB 381 (2000); Paul R. Reedy, 45 ECAB 488 (1994). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Payment of Schedule Awards, Chapter 2.808.7(b)(2) (April 1995). If, on the other hand,
the claimant sustains increased impairment at a later date which is due to work-related factors, an additional award
will be payable if supported by the medical evidence. In this case, the original award is undisturbed and the new
award has its own date of maximum medical improvement, percent and period.
12

Cf. Felix Flescha, 52 ECAB 268 (2001); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB
820 (1978).

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ORDER
IT IS HEREBY ORDERED THAT the May 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 07-752
Issued: July 23, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant filed a timely appeal from a July 20, 2006 merit decision
of the Office of Workers’ Compensation Programs terminating her compensation benefits and a
December 6, 2006 hearing representative’s decision affirming the termination.1 Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective August 6, 2006 on the grounds that she had no further disability
due to her June 17, 1999 employment injury; and (2) whether the Office properly terminated
authorization for medical benefits.

1

The record also contains a November 14, 2006 decision reducing appellant’s compensation benefits effective
September 4, 2005. Appellant has not appealed this decision and, therefore, it is not before the Board at this time.
20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been before the Board. In the first appeal, the Board reversed
decisions dated August 22, July 10 and March 15, 2001 after finding that the Office failed to met
its burden of proof to terminate compensation benefits effective March 12, 2001.2 The Board
determined that the medical evidence did not clearly establish that appellant could resume her
regular employment and had no further restrictions due to her accepted conditions of a resolved
left shoulder contusion, resolved left ankle sprain, right foot sprain and right tarsal tunnel
syndrome. The findings of fact and conclusions of law from the prior decision are hereby
incorporated by reference.
The Office reinstated compensation benefits. In a work restriction evaluation dated
November 19, 2003, Dr. Lawrence Mandel, a podiatrist, found that appellant could resume work
for eight hours per day with restrictions. On October 25, 2004 the Office referred appellant to
Dr. Don Miskew, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a
report dated December 1, 2004, Dr. Miskew diagnosed right foot pain unsupported by objective
findings. He opined that she could resume full-time employment without restrictions.
The Office determined that a conflict in medical opinion existed between Dr. Mandel and
Dr. Miskew on the extent of appellant’s work-related disability. The Office referred her to
Dr. McPherson S. Beall, Jr., a Board-certified orthopedic surgeon, for an impartial medical
examination. In a report dated May 3, 2005, Dr. Beall found that appellant had no residuals of
her sprained ankle or foot. He noted that the most recent electromyogram (EMG) did not show
evidence of tarsal tunnel. Dr. Beall stated:
“The current diagnoses are right tarsal tunnel syndrome, although this is not
confirmed by the most recent electrodiagnostic study. This frequently falls into a
category of more difficulty in confirming this diagnosis and subjective complaints
will take on more importance. Since this is an accepted diagnosis of a
work[-]related problem, I will consider her subjective complaints as evidence of
ongoing tarsal tunnel syndrome.”
Dr. Beall found that she could not perform her usual job and recommended a tarsal tunnel
release. In a work restriction evaluation, he found that she could work for eight hours per day
with restrictions.

2

Tressia Lewis, Docket No. 02-56 (issued August 1, 2002).

2

On September 22, 2005 the Office informed Dr. Beall that the “acceptance of a condition
by this Office as being work related is not medical rationale that supports the existence of such a
condition.” The Office requested clarification from Dr. Beall regarding the current diagnosis of
tarsal tunnel syndrome, its relationship to employment and the need for surgery.3
In a response dated November 25, 2005, Dr. Beall asserted, “It would be my opinion
based on the second EMG regarding a tarsal tunnel syndrome and the solely subjective complaint
of pain that a surgical procedure would not be required for this tarsal tunnel problem.” In a
November 7, 2005 internal memorandum, the Office noted that Dr. Beall had not been fully
responsive to its request for additional information.
On November 21, 2005 the Office referred appellant to Dr. Dale D. Dalenberg, a Boardcertified orthopedic surgeon, for a second impartial medical examination. In a report dated
June 12, 2006, Dr. Dalenberg discussed the history of injury and the results of diagnostic testing.
He noted that appellant indicated that her left shoulder condition had “largely resolved except for
residuals of poor internal rotation and locking up when combine hair. She said also that she hurt
a knee at the time but cannot remember which one.” Dr. Dalenberg described appellant’s
complaints of bilateral foot pain. On physical examination, he found negative tarsal Tinel’s tests
and tarsal compression tests bilaterally and no plantar fascial tenderness. Dr. Dalenberg noted
that an early EMG showed possible tarsal tunnel syndrome and a subsequent EMG was normal.
He found no objective evidence of tarsal tunnel syndrome. Dr. Dalenberg diagnosed possible
plantar fasciitis unrelated to employment. He opined that plantar fasciitis “does not come about
as a result of this claimant’s type of injury mechanism.” Dr. Dalenberg stated: “[B]ased on the
objective exam[ination] and history, there is no objective medical evidence that the claimant
could not return to her full[-]duty job. The claimant has a hodgepodge of subjective complaints,
but there are no objective finding[s] to substantiate her complaints.” He concluded that appellant
had no residuals from her employment injury. In an accompanying work restriction evaluation,
he opined that appellant could work full time without restrictions.
On June 15, 2006 the Office notified appellant that it proposed to terminate her
compensation and entitlement to medical benefits on the grounds that the weight of the medical
evidence established that she had no further employment-related condition or disability. In a
3

On January 18, 2005 the employing establishment noted that appellant worked limited duty until she was
removed for cause effective March 24, 2000 and questioned her entitlement to compensation. In a decision dated
September 23, 2005, the Office found that she was not entitled to further compensation. By decision dated
October 14, 2005, the Office reduced her compensation effective September 4, 2005 after finding that she worked
four hours per day until she was removed for cause. By order dated February 7, 2006, the Board set aside the
September 23, 2005 decision after finding that it was unclear whether the Office was terminating or reducing her
compensation. Order Remanding Case, Docket No. 06-389 (issued February 7, 2006). By decision dated April 13,
2006, the Office reduced appellant’s compensation effective September 4, 2005 because she was released to work
for four hours per day when she was removed for cause. In an order dated August 21, 2006, the Board set aside the
October 14, 2005 decision as it did not discuss appellant’s job requirements and found the April 13, 2006 decision
null and void as it was issued while the Board had jurisdiction over the case. Order Remanding Case, Docket No.
06-393 (issued August 21, 2006) In a decision dated November 14, 2006, the Office reduced appellant’s benefits
effective September 4, 2005 and found that she had not established a recurrence of disability beginning
July 27, 2004. As previously noted, appellant has not appealed this decision and thus it is not before the Board at
this time.

3

July 11, 2006 response, she disagreed with the termination, arguing that EMGs obtained on
April 14, 2000 and August 7, 2003 showed mild tarsal tunnel syndrome.
By decision dated July 20, 2006, the Office terminated appellant’s compensation and
entitlement to medical benefits effective August 6, 2006 based on its finding that the opinion of
Dr. Dalenberg, the impartial medical examiner, represented the weight of the evidence and
established that she had no residual condition or disability from her work injury.
On August 2, 2006 appellant requested a review of the written record. In a decision dated
December 6, 2006, an Office hearing representative affirmed the July 20, 2006 termination
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.7 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left shoulder contusion, left ankle sprain,
right foot sprain and right tarsal tunnel syndrome due to a June 17, 1999 employment injury.
The employing establishment terminated her for cause on March 24, 2000. On August 1, 2002
4

Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

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the Board found that the Office failed to meet its burden of proof to terminate compensation
benefits. The Office returned appellant to the periodic rolls.
Appellant’s attending physician, Dr Mandel, found that she could work full time with
restrictions. Dr. Miskew, an Office referral physician, diagnosed right foot pain unsubstantiated
by objective findings and opined that she had no restrictions due to her employment injury. The
Office found a conflict in medical opinion between Dr. Mandel and Dr. Miskew on the extent of
appellant’s work-related disability and referred her to Dr. Beall for an impartial medical
examination. In a report dated May 3, 2005, Dr. Beall opined that appellant had no residuals of
her ankle and foot sprain and noted that a recent EMG did not show tarsal tunnel syndrome. He
found that her subjective complaints supported a continuing tarsal tunnel condition “[s]ince this
is an accepted diagnosis of a work[-]related problem.” The Office requested clarification from
Dr. Beall regarding whether appellant continued to experience tarsal tunnel syndrome due to her
employment injury and whether she required surgery. On November 25, 2005 Dr. Beall asserted
that she did not need surgery for tarsal tunnel as her complaints were “solely subjective.” As he
did not adequately elaborate on his opinion regarding the relationship between her tarsal tunnel
syndrome and her employment, the Office properly referred appellant to Dr. Dalenberg, a Boardcertified orthopedic surgeon, for a second impartial medical examiner.9
Where there exist opposing medical reports and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.10 In a report dated June 9, 2006, Dr. Dalenberg reviewed the history of injury and listed
detailed findings on physical examination. He noted that appellant had no significant left
shoulder complaints but complained of bilateral foot pain. On examination, Dr. Dalenberg found
that objective tests were negative for tarsal tunnel syndrome. He opined that there was no
objective evidence supporting appellant’s subjective complaints of bilateral foot pain.
Dr. Dalenberg diagnosed possible plantar fasciitis which he found was unrelated to her work
injury based on the mechanism of injury. He concluded that appellant had no residuals of her
employment injury and could resume her usual employment.
The Board finds that the Office properly relied upon the opinion of Dr. Dalenberg in
terminating compensation benefits effective August 6, 2006. Dr. Dalenberg based his opinion on
a proper factual and medical history and accurately summarized the medical evidence. He
provided rationale for his conclusion by explaining that the objective findings did not support
appellant’s complaints. The Board has reviewed the opinion of Dr. Dalenberg and finds that it
has reliability, probative value and convincing quality with respect to the conclusions reached.11
9

In situations where the Office secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from such specialist requires clarification or elaboration,
the Office has the responsibility to secure a supplemental report from the specialist for the purpose of correcting the
defect in the original opinion. If the specialist is unwilling or unable to clarify and elaborate on his or her opinion,
the case should be referred to another appropriate impartial medical specialist. Guiseppe Aversa, 55 ECAB
164 (2003).
10

Jaja K. Asaramo, 55 ECAB 200 (2004).

11

Manuel Gill, 52 ECAB 282 (2001).

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Thus, his opinion is entitled to the special weight accorded an impartial medical examiner and
establishes that appellant has no further employment-related disability.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.12 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.13
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits for the
accepted conditions of right foot sprain and tarsal tunnel syndrome through the opinion of
Dr. Dalenberg, the impartial medical examiner, who found that appellant had no residuals of her
accepted employment injury and that her current complaints were not work related. He provided
rationale for his opinion by explaining that the findings on physical examination did not support
ongoing problems from her employment injury. As the impartial medical specialist,
Dr. Dalenberg’s opinion is entitled to special weight and establishes that appellant requires no
further treatment for her accepted conditions.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and authorization for medical benefits effective August 6, 2006 on the grounds
that she had no further disability due to her June 17, 1999 employment injury.

12

Pamela K. Guesford, 53 ECAB 727 (2002).

13

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 6 and July 20, 2006 are affirmed.
Issued: July 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Tulsa, OK, Employer
__________________________________________

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

Docket No. 19-1358
Issued: February 11, 2020

Case Submitted on the Record

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

JURISDICTION
On June 6, 2019 appellant filed a timely appeal from a March 22, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted February 7, 2019 employment incident.
FACTUAL HISTORY
On February 7, 2019 appellant, then a 47-year-old deportation officer, filed a traumatic
injury claim (Form CA-1) alleging that he was exposed to tuberculosis (TB) that day while in the
performance of duty. He explained that he was transporting a detainee that had active TB while
in the confined space of a government vehicle for several hours. Appellant did not stop work.
In an attached witness statement of even date, appellant’s coworker, G.G., provided that
he was present with appellant and the detainee on February 7, 2019. He noted that the exposure
started at 8:45 a.m. and continued for several hours during the drive to Tulsa, Oklahoma.
In a February 11, 2019 development letter, OWCP notified appellant that the information
he submitted was insufficient to support his claim. It advised him of the type of factual and medical
evidence required to establish his traumatic injury claim and provided a factual questionnaire for
his completion. OWCP afforded appellant 30 days to respond.
In response, appellant provided a February 11, 2019 medical report from Dr. Christian
Nielsen, Board-certified in preventative medicine. Dr. Nielsen reported that appellant arrived at
his office after being exposed to a detainee with active TB for several hours. He noted that
appellant had no positive TB screenings in the past and that he presented with no current symptoms
despite exposure.
In a February 13, 2019 medical report from a follow-up appointment with Dr. Nielsen, he
again noted that appellant had no symptoms.
By decision dated March 22, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence containing a medical diagnosis “in connection
with the claimed event.” It concluded, therefore, that the requirements had not been met to
establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
3

Supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted February 7, 2019 employment incident.
The case record supports that appellant was exposed to a detainee with active TB while in
the performance of duty on February 7, 2019. The Board finds, however, that he did not establish
his traumatic injury claim because the medical evidence did not establish that the accepted
employment incident caused or contributed to a diagnosed medical condition.
In Dr. Nielsen’s February 11 and 13, 2019 medical reports, he provided that appellant was
exposed to TB after spending several hours exposed to a detainee with active TB. Although he
identified the employment incident, Dr. Nielsen did not address whether this exposure resulted in
a diagnosed medical condition. Lacking a firm diagnosis and rationalized medical opinion
regarding causal relationship, his medical reports are of limited probative value.8
As appellant has not submitted rationalized medical evidence relating a medical condition
causally related to the accepted February 7, 2019 employment incident, the Board finds that he has
not met his burden of proof.
On appeal appellant contends that OWCP should pay for his tuberculosis screening.
Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a workrelated injury entitling an employee to medical treatment under FECA unless the employee has
sustained an identifiable injury or medical condition as a result of that exposure.9 Where there is
actual or probable exposure to a known contaminant due to an injury, OWCP can authorize

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
8

J.F., Docket No. 18-0904 (issued November 27, 2018); see D.S., Docket No. 18-0061 (issued May 29, 2018).

9

E.M., Docket No. 12-1678 (issued January 7, 2013).

3

treatment.10 In this case, the medical evidence from Dr. Nielsen did not establish that appellant
sustained any disease or was otherwise exposed to a known contaminant due to the February 7,
2019 employment incident. As a result, appellant is not entitled to reimbursement for his medical
expenses.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted February 7, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10

See J.F., Docket No. 09-1061 (issued November 17, 2009). See also 20 C.F.R. §§ 10.303(a) and 10.313(b).

4


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

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

Docket No. 07-858
Issued: August 14, 2007

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 February 7, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 24, 2007 which denied his recurrence
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 has established a recurrence of disability commencing on
or after December 28, 2004 causally related to his accepted October 20, 2004 employment
injury.
FACTUAL HISTORY
On October 25, 2004 appellant, then a 49-year-old carrier, filed a traumatic injury claim
alleging that on October 20, 2004 he sustained an injury to his left hand when he fell and used
his left hand to break his fall. On January 12, 2005 the Office accepted appellant’s claim for left
hand contusion, left hand strain and lumbosacral strain. In its letter, the Office noted that left
de Quervain’s tenosynovitis was not accepted at that time.

In a June 29, 2005 letter, appellant described the factors surrounding his work incident,
the subsequent doctor visits and the symptoms he has experienced since the accepted incident
stating that his left thumb had gotten better, but was still painful. He informed the Office that he
returned to work on November 8, 2004, but only used his right arm as instructed by his doctor.
Appellant further noted that four or five weeks after he returned to work he began to experience
pain in his right hand, thumb, forearm and shoulder.
In a September 1, 2005 magnetic resonance imagining scan report, Dr. Adil Mazhar
diagnosed disc dislocation at C2/3 and C3/4, a disc desiccation and disc protrusion at C4/5 and
disc protrusion at C5/6. In a September 6, 2005 medical report, Dr. Alfred P. Luppi, a
physiatrist, diagnosed general sensory neuropathy in both hands, extensory tendonis of extensory
tendons and loss of muscle mass of the left first dorsal interossi and thenar muscle. In his letter,
Dr. Luppi correctly described that appellant had a slip and fall injury which resulted in trauma to
the back of the torso.
On August 15, 2006 appellant filed a notice of recurrence claiming that he suffered a
recurrence on December 28, 2004 causally related to his October 20, 2004 employment injury.
In a December 7, 2006 letter, the employing establishment informed the Office that appellant
separated from the employing establishment on September 6, 2005. In a December 7, 2006
letter, the Office informed appellant that additional factual and medical information was
necessary to support his recurrence claim.
In a December 17, 2006 letter, Dr. Sony T. Vo informed the Office that appellant had
been a patient since October 26, 2000 and diagnosed hepatitis.
In a December 15, 2006 report, Dr. Enass N. Rickards, an orthopedic surgeon, diagnosed
appellant with left de Quervain’s disease and opined that appellant needed either a cortisone shot
or surgery. In a report dated December 28, 2004, Dr. Rickards diagnosed appellant with left de
Quervain’s disease, reported that appellant received injections and released appellant to light
duty with limited use of his left arm. On January 18, 2005 Dr. Rickards diagnosed appellant
with left de Quervain’s disease and right upper extremity repetitive strain and released appellant
to light duty.
On January 24, 2007 the Office denied appellant’s recurrence claim on the grounds that
the factual and medical evidence did not establish that the claimed recurrence resulted from the
accepted work injury.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act1 has
the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.2 Because appellant is alleging that additional medical
conditions, which were not accepted as part of the initial claim, caused a recurrence of disability
1

5 U.S.C. §§ 8101-8193

2

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

2

he must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the conditions are causally related to the employment
injury and supports that conclusion with sound medical rationale.3 Where no such rationale is
present, the medical evidence is of diminished probative value.4
The Board has previously held that, when diagnostic testing is delayed, uncertainty
mounts regarding the cause of the diagnosed condition and a question arises as to whether that
testing in fact documents the injury claimed by the employee.5 The greater the delay, in testing,
the greater the likelihood that an event not related to employment has caused or worsened the
condition for which the employee seeks compensation. When the delay becomes so significant
that it calls into question the validity of an affirmative opinion, based at least in part on the
testing, such delay diminishes the probative value of the opinion offered.6
In order to establish that his claimed recurrence of the condition was caused by the
accepted injury, medical evidence of bridging symptoms between his present condition and the
accepted injury must support the physician’s conclusion of a causal relationship.7
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition
resulting from a previous injury or illness without a new or intervening injury.8
ANALYSIS
The Office accepted that appellant sustained a left hand contusion, left hand strain and
lumbosacral strain due to an October 20, 2004 employment injury. Appellant claimed a
recurrence of disability on December 28, 2004.
Appellant has the burden of establishing that he sustained a recurrence of a medical
condition on December 28, 2004 causally related to his October 20, 2004 employment injury.
The medical evidence submitted is insufficient to establish that appellant sustained a recurrence.
Dr. Luppi is the only physician of record who attributed appellant’s current condition at least in
part to the October 20, 2004 employment injury. While he correctly stated that appellant had a
slip and fall injury which resulted in trauma to the back of the torso and diagnosed general
sensory neuropathy in both hands, he did not explain how appellant’s current condition was
causally related to the October 20, 2004 employment injury. As the report does not discuss
causal relation supported by medical rationale, it is insufficient to prove that appellant’s claimed
recurrence is related to the previous employment injury.
3

Ronald A. Eldridge, 53 ECAB 218 (2001).

4

Albert C. Brown, 52 ECAB 152 (2000).

5

Linda L. Mendenhall, 41 ECAB 532 (1990).

6

Id.

7

See Ricky S. Storms, 52 ECAB 349 (2001).

8

20 C.F.R. § 10.5(x).

3

The remaining doctors’ reports fail to offer an opinion on causal relation. Medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9 Dr. Vo merely stated that appellant
was a patient and had hepatitis. Dr. Rickards diagnosed left de Quervain’s disease and
recommended light duty. Dr. Mazhar diagnosed appellant with disc dislocation at C2/3 and C3/4
and disc protrusion at C4/5 and C5/6. None of the reports contained any medical rationale to
demonstrate the causal relation between appellant’s prior employment injury and his current
condition. Therefore appellant has failed to prove that the claimed recurrence of disability was
causally related to the October 20, 2004 employment injury.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
disability on December 28, 2004.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2007
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

9

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 07-51
Issued: March 23, 2007

Case Submitted on the Record

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

JURISDICTION
On September 26, 2006 appellant filed a timely appeal from a July 6, 2006 merit decision
of the Office of Workers’ Compensation Programs denying his occupational injury claim and a
September 5, 2006 nonmerit decision denying his request for reconsideration. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
developed an occupational disease in the performance of duty; and (2) whether the Office
properly denied his request for merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 16, 2005 appellant, then a 45-year-old transportation security screener,
filed an occupational disease claim alleging that his stressful work environment caused him heart
and chest palpitations, anxiety and stress. His condition began on December 4, 2005 and he first

realized its relationship to his work on December 15, 2005. Appellant stopped work on
December 4, 2005 and was seen in the Emergency Department of a Florida hospital the same day
for chest pains. A December 9, 2005 return to work slip from a Central Florida internists
advised that appellant was under care for “chest pain -- palpitations, anxiety and work-related
stress” and could return to work on December 14, 2005.
On February 1, 2006 the Office informed appellant that additional factual and medical
information was required in order to adjudicate his claim.1 The Office asked appellant to
describe in detail the employment conditions or incidents believed to be the cause of his claimed
condition and noted that his statement that his work environment caused his stress was “too
vague.” In response, appellant submitted additional medical records related to his emergency
room treatment on December 4, 2005 which noted his complaints of chest pain and palpitations
occurring during stress and emotional upset. Dr. Leonardo Cisneros, an osteopath, provided an
impression of palpitations and released appellant to return home.
By decision dated July 6, 2006, the Office denied appellant’s claim finding that the
evidence submitted was insufficient to establish that employment events occurred as alleged.
Appellant requested reconsideration on August 11, 2006. He advised that the date of
injury was December 4, 2005 and not December 15, 2005.2 No additional evidence was
submitted.
By decision dated September 5, 2006, the Office denied appellant’s request for
reconsideration finding that the evidence submitted in support of the request did not warrant a
merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation, that an injury was sustained while in the performance
of duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.4 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury and an
occupational disease.5

1

The record reflects that this letter was remailed on March 17, 2006 to appellant’s correct address.

2

Office letters involving the claim noted a claimed date of injury of December 15, 2005. This corresponds to the
date listed on appellant’s occupational disease claim form on which appellant stated that he first realized the
relationship between his claimed condition and his employment.
3

5 U.S.C. §§ 8101-8193.

4

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

2

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
Furthermore, in claims involving emotional conditions, a claimant must establish a
factual basis for his or her allegations with probative and reliable evidence. The issue is whether
the claimant has submitted sufficient evidence under the Act to establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence. The primary
reason for requiring factual evidence from the claimant in support of his or her allegations of
stress in the workplace is to establish a basis in fact for the contentions made, as opposed to mere
perceptions of the claimant, which in turn may be fully examined and evaluated by the Office
and the Board.9
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim alleging generally that a stressful work
environment and “badgering” caused anxiety and heart palpitations. He submitted medical
reports diagnosing palpitations. On February 1 and March 16, 2006 the Office advised appellant
that the evidence submitted was insufficient to establish his claim. The Office informed
appellant of the type of evidence needed to establish his claim. It requested appellant to describe
in detail those employment conditions or incidents that he believed were the cause of his illness
as the information provided on his claim form was too vague. The Office emphasized that
appellant’s response should be as specific as possible. However, appellant did not respond with
a description of specific employment instances or conditions that he believed were the cause of
his claimed condition.
As noted, it is appellant’s responsibility to provide a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition. Because appellant did not provide a statement delineating specific factors
of employment he deemed to have caused his “stressful work environment,” he has not met his
burden of proof to identify employment factors alleged to have caused or contributed to the

6

Solomon Polen, 51 ECAB 341 (2000).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Ernest St. Pierre, 51 ECAB 623 (2000).

9

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006).

3

presence or occurrence of the claimed disease or condition.10 The Board finds that the Office
properly denied his claim for benefits under the Act.
LEGAL PRECEDENT -- ISSUE 2
The Act11 provides that the Office may review an award for or against compensation
upon application by an employee (or his or her representative) who receives an adverse decision.
The employee may obtain this relief through a request to the district Office. The request, along
with the supporting statements and evidence, is called the application for reconsideration.12
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.14 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
In his request for reconsideration, appellant did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by the Office. He contended that the date of injury was December 4,
2005 and not December 15, 2005. This argument does not show that the Office erroneously
applied or interpreted a specific point of law nor does it advance a relevant legal argument not
previously considered by the Office. The underlying defect in the claim is appellant’s failure to
provide a statement to the Office specifying work incidents and conditions that caused his
claimed condition. Appellant’s contention about the date of injury is not responsive to this
deficiency in the evidence. While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
10

As appellant did not identify the employment factors or conditions that were the caused of his claimed
condition, the Board need not consider the medical evidence of record. See id. See also Bonnie A. Contreras, 57
ECAB ___ (Docket No. 06-167, issued February 7, 2006) (where a claimant did not establish an employment
incident alleged to have caused an injury, it was not necessary to consider any medical evidence).
11

5 U.S.C. §§ 8101 et seq.

12

20 C.F.R. § 10.605.

13

20 C.F.R. § 10.606.

14

Donna L. Shahin, 55 ECAB 192 (2003).

15

20 C.F.R. § 10.608.

4

does not have a reasonable color of validity.16 Because appellant’s assertion is not responsive to
the underlying defect in the claim, the Board finds that appellant’s contention, to the extent that it
may be construed as a legal contention, does not have a reasonable color of validity.
Appellant also did not submit any relevant and pertinent new evidence not previously
considered by the Office. As noted above, appellant presented no additional evidence or
information responsive to the defect in his claim, the lack of a detailed statement identifying
specific employment factors or conditions alleged to have caused his claimed condition.
Accordingly, the Board finds that the Office properly denied appellant’s request for merit
review.
CONCLUSION
Appellant has not met his burden of proof in establishing that he developed an
occupational disease in the performance of duty and that the Office properly denied appellant’s
request for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 5 and July 6, 2006 are affirmed.
Issued: March 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

Robert P. Mitchell, 52 ECAB 116 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bay Pines, FL, Employer
__________________________________________

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

Docket No. 12-1953
Issued: March 14, 2013

Case Submitted on the Record

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

JURISDICTION
On September 24, 2012 appellant filed a timely appeal from the August 23, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has more than a 24 percent impairment of her left lower
extremity, for which she received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board
will decide the appeal on the record.

FACTUAL HISTORY
On April 17, 2007 appellant, a 56-year-old housekeeping aide, sustained a traumatic
injury in the performance of duty when she slipped on a wet floor and fell. OWCP accepted her
claim for a closed fracture of the left patella, a torn left medial meniscus and loose body.
Appellant underwent an open reduction and internal fixation in 2007, a patella tendon repair in
2008 and a total patellectomy on September 29, 2008. On March 23, 2010 she underwent a left
partial medial meniscectomy and synovectomy.
Appellant claimed a schedule award. Dr. Vladimir A. Alexander, her Board-certified
orthopedic surgeon, evaluated her left lower extremity under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009). Applying Table 16-3, page
510, he found that appellant had a 22 percent default impairment rating as a result of her total
patellectomy, which is classified as a moderate problem. As appellant’s functional history3 and
clinical studies4 were also moderate, the default impairment rating required no adjustment.
An OWCP medical adviser reviewed Dr. Alexander’s evaluation and confirmed a 22
percent impairment of the left lower extremity resulting from appellant’s total patellectomy. He
noted, however, that appellant also had a two percent impairment as a result of her partial medial
meniscectomy, according to Table 16-3, page 509. As this represented a separate structure, the
medical adviser found it appropriate to combine both impairments for a total impairment of 24
percent.
On August 23, 2012 OWCP issued a schedule award for a 24 percent impairment of
appellant’s left lower extremity.
LEGAL PRECEDENT
FECA sets forth the number of weeks of compensation payable for permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. It does not,
however, specify the manner in which the percentage of loss shall be determined. The method
used in making such a determination is a matter that rests within the sound discretion of OWCP.5
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate

3

A.M.A., Guides 516 (6th ed. 2009) (Table 16-6, Functional History Adjustment).

4

Id. at 519 (Table 16-8, Clinical Studies Adjustment).

5

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2

standard for evaluating schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.7
ANALYSIS
Diagnosis-based impairment is the primary method of evaluating the lower extremity.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment: no objective problem, mild problem, moderate problem, severe problem,
very severe problem approaching total function loss. This will provide a default impairment
rating, which may be adjusted slightly based on grade modifiers or nonkey factors, such as
functional history, physical examination and clinical studies.8
Table 16-3 of the A.M.A., Guides provides the default impairment ratings for diagnoses
of the knee. For a diagnosis of total patellectomy, the default impairment is 22 percent of the
lower extremity. This is classified as a moderate problem. Because Dr. Alexander, the attending
orthopedic surgeon, also classified appellant’s functional history and clinical studies as
moderate, there is no adjustment. The default rating stands.9
A question arises whether OWCP may rate appellant’s impairment on the basis of
multiple diagnoses, as OWCP’s medical adviser recommended. The A.M.A., Guides explains
that in most cases, only one diagnosis in a region, such as the knee, will be appropriate. If a
patient has two significant diagnoses, the examiner should use the diagnosis with the highest
impairment rating in that region that is causally related for the impairment calculation.10
The A.M.A., Guides adds that selecting the optimal diagnosis requires judgment and
experience. If more than one diagnosis in a region, such as a knee, can be used, the one that
provides the most clinically accurate and causally-related impairment rating should be used.
This will generally be the more specific diagnosis. Typically, one diagnosis will adequately
characterize the impairment and its impact on activities of daily living.11
Accordingly, it appears that Dr. Alexander properly followed the protocols of the
A.M.A., Guides when he selected the diagnosis of patellectomy over meniscectomy. OWCP’s
medical adviser reasoned that the two should be combined because they represented different
structures, but the A.M.A., Guides does not discuss separate structures, it discusses regions. The
knee is defined as the region from the mid femur to the mid tibia, including all the bone,
6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
8

A.M.A., Guides 497.

9

Dr. Alexander did not use the grade modifier for physical examination because he already used appellant’s
physical examination to define the class of impairment for the diagnosis of patellectomy. Id. at 515-16.
10

Id. at 497.

11

Id. at 499.

3

joint, ligamentous and soft tissue structures encompassing the joint.12 Thus, appellant’s patella
and meniscus are both considered to be the knee. In most cases, only one diagnosis in a region,
such as the knee, will be appropriate.
The Board finds that appellant has no more than the 24 percent awarded for the
impairment of her left lower extremity. On that basis, the Board will affirm the August 23, 2012
schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 24 percent impairment of her left lower
extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

Id. at 500.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CITIZENSHIP & IMMIGRATION
SERVICES, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 19-0203
Issued: June 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 5, 2018 appellant, through counsel, filed a timely appeal from an August 15,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral carpal
tunnel syndrome in the performance of duty, as alleged.
FACTUAL HISTORY
On January 24, 2018 appellant, then a 56-year-old immigration services officer, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome due to factors of her federal employment. She related that she initially developed the
condition in 1990, that on April 17, 2008 she sought medical treatment for finger tingling and arm
numbness, on October 1, 2013 she again sought treatment for the same symptoms, and that her
symptoms worsened after she began work as an interviewing officer on March 23, 2015.3
Appellant related that her Form CA-2 was not filed with the employing establishment within 30
days of the date she first realized her condition was caused or aggravated by her federal
employment because she filed the wrong form back in February 2016, and she was instructed to
file the correct Form CA-2 with new medical evidence.
On the reverse side of the claim form the employing establishment indicated that appellant
first reported her condition to her supervisor on January 16, 2018. It did not indicate whether she
stopped or returned to work. The employing establishment checked the box marked “no” when
asked whether medical reports showed that appellant was disabled for work.
In a development letter dated January 30, 2018, OWCP advised appellant of the type of
factual and medical evidence needed to establish her claim, including a detailed description and
factual corroboration of the identified employment factors, and a report from her physician
explaining how and why her employment tasks would cause the claimed conditions. It also
requested that she respond to a questionnaire to substantiate the factual elements of her claim. In
a separate development letter of the same date, OWCP requested that the employing establishment
provide additional information regarding appellant’s occupational disease claim, including
comments from a knowledgeable supervisor regarding the accuracy of appellant’s statements, and
a copy of appellant’s position description and physical requirements of her position. It afforded
both parties 30 days to submit the requested evidence. In a letter dated January 30, 2018, the
employing establishment related that appellant first became aware of her condition on April 17,
2008 when she was employed under a different “CIS agency code.” It indicated that appellant
started her current position in March 2015, and that her previous condition was aggravated by her
employment duties on February 8, 2016.
In a subsequent letter dated February 21, 2018, an employing establishment official
indicated that appellant’s supervisor was unable to provide information stemming from the injury
in April 2008 because she had only been her supervisor for two years; however, appellant’s claims
were not disputed. She noted that appellant wore wrist guards at work and that her primary duties
were interviewing applicants and determining their eligibility for citizenship. The employing
establishment further related that appellant interviewed approximately 8 to 12 applicants per day,
3

Appellant has filed several prior claims for FECA benefits which are not presently before the Board in this case.

2

thoroughly reviewed each of their files, took notes of the interview responses, and typed, updated,
and uploaded her notes into various computer systems for each applicant.
By decision dated March 14, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the claimed injury or events occurred as
alleged. It noted that she neither responded to the January 30, 2018 questionnaire, nor submitted
evidence containing a medical diagnosis in connection with the alleged factors.
On April 30, 2018 appellant, through counsel, requested reconsideration of OWCP’s
March 14, 2018 decision. She submitted additional medical evidence along with her request.
In a letter dated August 20, 2017, received by OWCP on April 30, 2018, Dr. John Knight,
an orthopedic surgeon, indicated that he evaluated appellant on July 19, 2017 and diagnosed
bilateral carpal tunnel syndrome. He noted that she underwent electrodiagnostic testing in 2013
and had previously received two cortisone shots. Dr. Knight related that appellant had developed
a cumulative trauma injury of bilateral upper extremities as a result of the usual and customary
factors of her federal employment. He recommended that she undergo surgery at that time.
By decision dated August 15, 2018, OWCP denied modification of its March 14, 2018
decision, finding that appellant had not provided a description of the employment factors leading
to her claimed injury. It further found that the medical evidence provided was insufficient to
establish that appellant developed carpal tunnel syndrome.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
An injury does not have to be confirmed by an eyewitness in order to establish the fact that
an employee sustained an injury while in the performance of duty. However, the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.8 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may cast doubt on an employee’s statements in determining
whether he or she had established a prima facie claim for compensation. However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong and persuasive evidence.9
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s claim because she failed to establish that the alleged work events
occurred as alleged. However, the evidence of record supports that her job duties required
performing repetitive tasks including writing and typing. Specifically, in its February 21, 2018
letter, the employing establishment did not dispute appellant’s claims and related that appellant
interviewed 8 to 12 applicants per day, took notes, and then typed her notes into various computer
systems for each applicant. Thus, the Board finds that the evidence is undisputed that appellant
performed employment duties which included performing repetitive activities using both of her
wrists.
As appellant has alleged and established occupational exposure, further consideration of
the medical evidence is necessary.10 This case will therefore be remanded to OWCP for evaluation
of the medical evidence to determine whether there is a causal relationship between the claimed
carpal tunnel condition and the accepted factors of her federal employment. Following such
further development as OWCP deems necessary, it shall issue a de novo decision.11

7

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

M.S., id.; see B.B., Docket No. 12-0165 (issued July 26, 2012); Mary Jo Coppolino, 43 ECAB 988 (1992).

9

Id.

10

M.D., Docket No. 18-1365 (issued March 12, 2019).

11

OWCP’s procedures provide that cases should be combined when correct adjudication of the issues depends on
frequent cross-referencing between files. For example, if a new injury case is reported for an employee who previously
filed an injury claim for a similar condition or the same part of the body, doubling is required. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000). On
remand OWCP shall administratively combine all necessary file numbers for a full and fair adjudication of appellant’s
pending claim.

4

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision.
Issued: June 3, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF CENSUS, San Francisco, CA, Employer
__________________________________________

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

Docket No. 07-1200
Issued: September 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 3, 2007 appellant filed a timely appeal from a January 11, 2007 merit decision
of the Office of Workers’ Compensation Programs, suspending her compensation benefits.
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 the Office properly suspended appellant’s compensation benefits
effective January 11, 2007 under 5 U.S.C. § 8123(d) for refusing to submit to a medical
examination.
FACTUAL HISTORY
On September 19, 2000 appellant, then a 68-year-old field representative, filed a
traumatic injury claim. On September 14, 2000 she was involved in a motor vehicle accident
which resulted in whiplash on the right side of her neck, muscle cramping in her lower right
back, shock, cuts, bruises, weakness, headaches, soreness on the right side of her body and

anxiety. Appellant stopped work on the date of injury. The Office accepted the claim for
thoracic and cervical sprains. On January 29, 2001 appellant returned to work at the employing
establishment on a part-time basis as a telephone operator. She stopped work in June 2002.
By letter dated August 29, 2002, the Office accepted appellant’s claim for recurrent
major depressive disorder and post-traumatic stress disorder.
On December 2, 2003 the Office found a conflict in the medical opinion evidence
between appellant’s attending physicians, Dr. George Trahms, a Board-certified psychiatrist, and
Dr. John J. Lavorgna, a Board-certified orthopedic surgeon, and an Office referral physician and
Board-certified neurologist, Dr. Thomas Mampalam, as to whether appellant had any continuing
residuals of her September 14, 2000 employment-related injuries. In reports dated March 7 and
October 14, 2003, Dr. Trahms and Dr. Lavorgna opined that appellant had residuals of her
preexisting degenerative cervical disease due to her September 14, 2000 employment injuries,
respectively. In a June 10, 2003 report, Dr. Mampalam opined that appellant’s preexisting
degenerative cervical and lumbar spondylosis was temporarily aggravated by her September 14,
2000 employment injuries and that this condition had resolved based on his objective findings.
He further opined that she could perform her regular work duties with restrictions.
By letter dated May 3, 2004, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Richard G. Dedo, a
Board-certified orthopedic surgeon, for an impartial medical examination. Appellant did not
attend the scheduled appointment. On May 3, 2004 the Office issued a notice of proposed
suspension of compensation for appellant’s refusal to attend the medical examination. By letter
dated May 26, 2004, it rescheduled the medical examination with Dr. Dedo. In a June 28, 2004
letter, the Office advised appellant that her appointment with Dr. Dedo had been cancelled. It
requested that she select an impartial medical examiner from a list of physicians it provided to
her. On July 16, 2004 appellant refused to select an impartial medical specialist. By letter dated
August 6, 2004, the Office referred her to Dr. Robert S. Ferretti, a Board-certified orthopedic
surgeon. Appellant did not attend the scheduled examination with Dr. Ferretti. On August 27,
2004 the Office issued a notice of proposed suspension of compensation for refusing to attend
the medical examination.1
By decisions dated July 13, 2005, the Office denied appellant’s request for payment of
massage and chiropractic treatment. On August 9, 2005 appellant requested an oral hearing
before an Office hearing representative. By letter dated June 18, 2006, she withdrew her request
for a hearing. In a July 25, 2006 decision, an Office hearing representative vacated the July 13,
2005 decisions. The hearing representative found that the case was not in posture for decision
because a conflict still existed in the medical opinion evidence as to whether appellant had any
continuing residuals due to her September 14, 2000 employment-related injuries. On August 9,
2006 appellant requested that the Office declare the July 25, 2006 decision null and void as she
had withdrawn her request for a hearing by letter dated June 18, 2006. In an August 30, 2006
decision, an Office hearing representative set aside the July 25, 2006 decision. He remanded the
case to the Office to address the conflict in the medical opinion evidence.
1

The case record does not contain a decision issued by the Office suspending appellant’s compensation based on
its August 27, 2004 notice.

2

By letter dated October 26, 2006, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. William C.
Andrews, Jr., a Board-certified orthopedic surgeon, for an impartial medical examination. The
examination was scheduled for 10:30 a.m. on November 1, 2006. On November 1, 2006
Dr. Andrews advised the Office that appellant did not attend the scheduled examination.
On November 1, 2006 the Office informed appellant of its proposed suspension of her
compensation benefits for refusing to attend the medical examination with Dr. Andrews. It
requested that she submit any reasons she had for not attending the examination within 14 days.
The Office advised appellant that, if she did not show good cause for missing the examination
her compensation would be suspended under section 8123(d) until she attended and cooperated
with the examination. In a November 12, 2006 letter, appellant stated that she did not attend the
scheduled appointment because she was advised by Dr. Andrews’ office that it had not received
her medical records, that she did not have an appointment scheduled for November 1, 2006 and
that he was not going to be in the office on that date.
By letter dated November 22, 2006, the Office advised appellant that its November 1,
2006 notice of proposed suspension of her compensation was rescinded based on her
November 12, 2006 letter. It further advised her that an impartial medical examination would be
rescheduled to resolve the conflict in medical issues. Appellant was also advised that she would
be further notified under separate cover as to the physician selected and time and place of the
examination.
By letter dated November 22, 2006, the Office advised appellant that her impartial
medical examination was rescheduled with Dr. Andrews. The examination was scheduled for
10:00 a.m. on December 13, 2006. The notice was properly addressed to appellant’s address of
record and included Dr. Andrews’ address and telephone number. Appellant was advised to
contact Dr. Andrews’ office to confirm the appointment and to obtain instructions related to the
examination. She was also advised that rescheduling of the appointment was strongly
discouraged but that, if an emergency arose which prevented her from attending the scheduled
appointment, she may reschedule only if she could receive an appointment within one week of
the previously scheduled appointment. The Office then advised appellant of her responsibility to
attend the appointment and that, if she failed to attend without any acceptable reason, her
compensation benefits could be suspended under section 8123(d).
On December 12, 2006 Dr. Andrews advised the Office that appellant telephoned him
and stated that she had another medical appointment scheduled on December 13, 2006.
Appellant did not tell him whether she planned to attend the appointment with him. Dr. Andrews
stated that he would examine her if she appeared at the scheduled appointment. On the
scheduled examination date, he advised the Office that appellant did not appear.
On December 14, 2006 the Office received a December 8, 2006 letter in which appellant
informed Dr. Andrews about her other medical appointment scheduled for December 13, 2006.
In a December 12, 2006 letter, she advised him that he was not prepared to conduct an impartial
medical examination because it was physically impossible for him to review her case record of
over 2,000 pages the night before the scheduled examination. Appellant contended that the
statement of accepted facts was not accurate as it was over two years old. She further contended

3

that Dr. Andrews was not impartial and that no conflict existed in the medical evidence because
she did not have an attending physician and one had not been authorized for over three years.
By letter dated December 22, 2006, the Office informed appellant of its proposed
suspension of her compensation benefits for refusing to attend the medical examination with
Dr. Andrews. It requested that she submit any reasons she had for not attending the examination
within 14 days. The Office advised that, if she did not show good cause for missing the
examination her compensation would be suspended under section 8123(d) until she attended and
cooperated with the examination.
In a January 1, 2007 letter,2 appellant referred to her December 12, 2006 letter for the
reasons why she failed to attend the December 13, 2006 medical examination.
By decision dated January 11, 2007, the Office suspended appellant’s compensation
benefits effective that date after finding that she refused to submit to an examination with
Dr. Andrews. It found that her January 1, 2006 letter did not show good cause for her failure to
attend the scheduled examination.
LEGAL PRECEDENT
Section 8123(a) of the Federal Employees’ Compensation Act provides:
“An employee shall submit to examination by a medical officer of the United
States or by a physician designated or approved by the Secretary of Labor, after
the injury and as frequently and at the times and places as may be reasonably
required. If there is disagreement between the physician making the examination
for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.”3
Section 8123(d) of the Act provides:
“If an employee refuses to submit to or obstructs an examination, [her] right to
compensation under this subchapter is suspended until the refusal or obstruction
stops. Compensation is not payable while a refusal or obstruction continues and
the period of the refusal or obstruction is deducted from the period which
compensation is payable to the employee.”4

2

It appears that appellant inadvertently dated her letter January 1, 2006 rather than January 1, 2007 as it
referenced the Office’s December 22, 2006 notice of proposed suspension and it was received by the Office on
January 4, 2007.
3

5 U.S.C. § 8123(a).

4

Id. at § 8123(d).

4

Section 10.323 of the Office’s implementing federal regulations provides:
“If an employee refuses to submit to or in any way obstructs an examination
required by [the Office], his or her right to compensation under the [Act] is
suspended until such refusal or obstruction stops. The employee will forfeit
compensation otherwise paid or payable under the [Act] for the period of the
refusal or obstruction and any compensation already paid for that period will be
declared an overpayment and will be subject to recovery pursuant to 5 U.S.C.
§ 8129.”5
The Office’s Federal (FECA) Procedure Manual provides:
“Failure to Appear. If the claimant does not report for a scheduled appointment,
he or she should be asked in writing to provide an explanation within 14 days. If
good cause is not established, entitlement to compensation should be suspended in
accordance with 5 U.S.C. § 8123(d) until the date on which the claimant agrees to
attend the examination.”6
ANALYSIS
The Office suspended appellant’s compensation benefits effective January 11, 2007
under section 8123(d) of the Act on the grounds that she failed to attend a scheduled medical
examination. The Board finds that the suspension of benefits was proper.
The Board finds that a conflict existed in medical opinion between appellant’s attending
physicians, Dr. Trahms and Dr. Lavorgna, and the Office referral physician, Dr. Mampalma, as
to whether she had any continuing residuals causally related to her accepted September 14, 2000
employment injuries. Dr. Trahms and Dr. Lavorgna opined that appellant had residuals of her
preexisting degenerative cervical disease due to her September 14, 2000 employment injuries,
respectively. Dr. Mampalam opined that the aggravation of appellant’s preexisting degenerative
cervical and lumbar spondylosis by her September 14, 2000 employment injuries had resolved
and that she could perform her regular work duties with restrictions. An impartial medical
examination was reasonably necessary to determine whether appellant had any continuing
employment-related residuals. Under section 8123 of the Act and its implementing regulations,
she was required to attend the examination.7
By letter dated November 22, 2006, the Office notified appellant that she was being
referred to Dr. Andrews for an impartial medical evaluation to resolve the conflict in the medical
opinion evidence. It informed her of her obligations to attend and cooperate. The notice clearly
explained that appellant’s compensation benefits would be suspended for failure to report to or
obstruction of the examination under section 8123(d) of the Act. The Office advised appellant
that the examination was scheduled for 10:00 a.m. on December 13, 2006. Appellant was also
5

20 C.F.R. § 10.323.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Suspension of Benefits, Chapter 2.810.14(d) (July 2000).

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

5

provided with Dr. Andrews’ address and telephone number. The Office advised her not to
reschedule the appointment but stated that, if an emergency arose which prevented her from
attending the appointment, she may reschedule only if she could receive an appointment within
one week of the previously scheduled appointment. Appellant had already failed to attend three
previously scheduled Office-directed examinations.
The Board finds that appellant did not establish good cause for her failure to report to the
scheduled examination with Dr. Andrews.
Notwithstanding the Office’s directions on
December 8, 2006 appellant informed Dr. Andrews that she had another medical appointment
scheduled for December 13, 2006. On December 12, 2006, one day prior to the scheduled
examination, appellant again informed Dr. Andrews about the conflicting medical appointment.
She neither rescheduled the December 13, 2006 examination nor appeared for it as specifically
directed by the Office’s November 22, 2006 letter. The Board finds that the reasons appellant
provided for not attending the December 13, 2006 appointment do not establish good cause. It is
not sufficient that she may also have had another appointment with her physician around the
same time frame. The law requires her to submit to an Office-directed examination. It is not for
appellant to decide whether circumstances lend themselves to an impartial medical opinion.
There is no discretion for her to exercise in this matter.8
On December 12, 2006 appellant provided further justification for her refusal to attend
the scheduled examination with Dr. Andrews such as questioning his ability to conduct the
examination and whether there was a reason to be referred to an impartial medical examination.
She also contended that it was physically impossible for Dr. Andrews to review her case record
of over 2,000 pages the night before the scheduled examination. These contentions are not
persuasive as appellant submitted no evidence establishing that Dr. Andrews was not qualified to
conduct the examination, nor that he was unable to adequately review the case record prior to the
scheduled examination. Appellant further provided no basis for disputing the Office’s referral to
the examination.
Appellant objected as well to the statement of accepted facts because it was over two
years old. However, the Board finds that this is no not a valid excuse to refuse to attend an
impartial medical examination. Appellant is mandated to submit to medical examinations at
such times and places as the Office and not appellant, considers necessary.9 Lastly, she
contended that Dr. Andrews was not impartial and that no conflict existed in the medical
evidence because she did not have an attending physician and one had not been authorized for
over three years. The Board has reviewed the medical evidence of record and determined that a
conflict existed regarding the extent of appellant’s continuing employment-related residuals and
that the referral to Dr. Andrews was necessary to resolve the conflict. Appellant submitted no
evidence establishing a bias of Dr. Andrews.
The Office, in its November 22, 2006 letter, appropriately directed appellant to report for
an impartial medical examination on December 13, 2006. Appellant failed to appear for the

8

E.B., 59 ECAB ___ (Docket No. 07-1618, issued January 8, 2008). See also id. at note 7.

9

See id; supra note 3.

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examination on the scheduled date and failed to show good cause for not complying with the
Office’s directive.
The Board finds that the Office provided appellant proper notice of her rights and
responsibilities, proper notice of the scheduled examination with Dr. Andrews and followed
established procedures in suspending her entitlement to compensation under 5 U.S.C. § 8123(d).
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits
under section 8123(d), effective January 11, 2007 for refusing to submit to a scheduled medical
examination.10
ORDER
IT IS HEREBY ORDERED THAT the January 11, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

5 U.S.C. § 8123; E.B., supra note 8.

7