United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburg, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-228
Issued: August 7, 2009

Case Submitted on the Record

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

JURISDICTION
On October 30, 2008 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ hearing representative’s merit decision dated July 24,
2008 finding that she had no more than 10 percent bilateral upper extremity impairment.
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 more than 10 percent impairment of each of her upper
extremities for which she has received a schedule award.
FACTUAL HISTORY
Appellant, a 47-year-old mail handler, filed an occupational disease claim in March 1976
alleging that she developed carpal tunnel syndrome due to factors of her federal employment.
The Office accepted her claim for bilateral carpal tunnel syndrome and she underwent surgical
releases. Appellant also underwent surgery for excision of a nonemployment-related ganglion
cyst on January 31, 1997.

In support of her claim for a schedule award, appellant submitted a report dated June 6,
2000 from Dr. Nicholas Diamond, an osteopath, who opined that she had 40 percent impairment
due to entrapment of the median nerve at the wrists bilaterally based on findings of surgical
scars, positive Phalen’s sign, full range of motion, decreased grip strength, decreased motor
strength and decreased sensation over the median nerve. Dr. Diamond found that appellant
reached maximum medical improvement on October 4, 1999.
The Office referred appellant for an evaluation with Dr. Richard J. Mandel, a Boardcertified orthopedic surgeon. In a report dated May 11, 2001, Dr. Mandel found that appellant
reported that her symptoms of numbness and paresthesias had completely resolved
postoperatively and that her symptoms involved weakness of grip and occasional pain. He noted
that appellant had full range of motion with no thenar atrophy of wasting and no provocative
signs of carpal tunnel syndrome. Dr. Mandel performed grip strength testing and noted that
results were nonphysiologic and opined that grip and pinch efforts were submaximal bilaterally.
He diagnosed resolved carpal tunnel syndrome with no evidence of ongoing median nerve
entrapment or median nerve dysfunction. Dr. Mandel assigned 10 percent impairment secondary
to decreased grip strength.
By decision dated January 22, 2002, the Office granted appellant a schedule award for 10
percent impairment of each of her upper extremities. Appellant, through her attorney, requested
an oral hearing and by decision dated December 2, 2002, the hearing representative set aside the
Office’s January 22, 2002 decision due to an unresolved conflict of medical opinion evidence
between Drs. Diamond and Mandel and remanded for additional development of the medical
evidence and an appropriate decision.
The Office referred appellant, a statement of accepted facts and a list of questions to
Dr. James N. Nutt, a Board-certified orthopedic surgeon, for an impartial medical examination to
resolve the conflict of medical opinion evidence. In a report dated February 20, 2003, Dr. Nutt
noted appellant’s history of injury and medical history and reported that appellant had full range
of motion in her neck, shoulders, elbows and wrists. He found that neither Tinel’s or Phalen’s
tests were abnormal and that sensibility to pin prick was intact in all fingers as was two-point
discrimination. Dr. Nutt found no dysfunction of the median or ulnar nerve in either hand, but
relative weakness in her hands on grasping of 81 percent or 25 percent impairment of the right
upper extremity and 23 percent impairment of the left upper extremity. He noted that he was
surprised to find weak hand grasps in view of the fairly normal manual testing of the elbows and
shoulders.
The district medical director reviewed Dr. Nutt’s report and noted the impairment rating
for loss of grip strength and the appropriate sections of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. The Office requested a supplemental report
based on the A.M.A., Guides from Dr. Nutt on March 25, 2003. Dr. Nutt submitted a
supplemental report on April 8, 2003 and stated that appellant exhibited a loss of grip strength
which he attributed to the muscles of the outside of the hand. He also recommended a repeat
electromyelogram (EMG) and nerve conduction velocity and noted that her impairment did not
seem to be related to her carpal tunnel syndrome. The Office authorized the additional testing on
April 21, 2003. Dr. Laurence D. Smith, a neurologist, performed an EMG on May 12, 2003 and
found a “borderline prolonged” right median distal sensory latency, but otherwise normal results

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for the bilateral median and ulnar sensory and motor nerve conduction. He concluded that
appellant’s EMG was normal. In a report dated May 30, 2003, Dr. Nutt reviewed the EMG
results and concluded that appellant had fully recovered from the carpal tunnel releases. He
stated, “She demonstrates weakness of grip on manual muscle testing. This phenomenon is of
unclear etiology also but is not related to a work-related injury or condition that I can conceive.
My medical opinion is that she has fully recovered from the carpal tunnel condition and surgical
releases.”
By decision dated June 23, 2003, the Office denied appellant’s claim for a schedule
award finding that Dr. Nutt’s report did not support an increase in appellant’s schedule award.
Appellant, through her attorney, requested an oral hearing on June 24, 2003. At the oral hearing,
counsel argued that the Office improperly selected Dr. Nutt as the Office bypassed Dr. Bruce
Horowitz, a Board-certified orthopedic surgeon, on the grounds that the commute was too far,
when the distance to Dr. Nutt’s office was equally great. By decision dated May 24, 2004, the
hearing representative agreed with appellant’s attorney finding that the Office erred in selecting
Dr. Nutt by improperly bypassing Dr. Bruce Horowitz, a Board-certified orthopedic surgeon.
The hearing representative remanded the case for the Office to refer appellant to Dr. Horowitz
for an impartial medical evaluation.
In a report dated September 1, 2004, Dr. Horowitz reviewed the medical records and
statement of accepted facts. He diagnosed, “status post release of bilateral carpal tunnel
syndromes due to work-related injury with complete recovery.” Dr. Horowitz noted that grip
strength was tested in a “gross manner” and that there “appears to be suboptimal grip efforts
bilaterally, although they appeared to be symmetric and without focal deficit.” He recommended
a functional capacity evaluation to determine if appellant was demonstrating suboptimal
performance on grip strength testing. Dr. Horowitz concluded that appellant had 10 percent
impairment secondary to decreased grip strength.
The Office issued a decision on October 5, 2004 denying appellant’s claim for an
additional schedule award based on Dr. Horowitz’ report. Appellant, through her attorney,
requested an oral hearing. By decision dated February 7, 2006, the hearing representative found
that the case was not in posture for decision as Dr. Horowitz’ report had not been reviewed by
the district medical director and remanded for this review. On May 31, 2006 the district medical
director disagreed with Dr. Horowitz’ opinion as it was based on a subjective loss of strength.
He recommended an evaluation by a second opinion physician.
The Office issued a letter decision dated June 5, 2006 noting that the district medical
director did not agree with Dr. Horowitz and found that appellant had no ratable impairment. It
concluded that appellant was not entitled to an additional schedule award. Appellant requested
an oral hearing on June 9, 2006. By decision dated July 25, 2006, the hearing representative
found that the medical evidence required additional development consisting of a request for a
supplemental report from Dr. Horowitz complying with the requirements of the A.M.A., Guides.
The hearing representative noted that, if Dr. Horowitz was unwilling or unable to provide the
requested information, then referral to a new impartial medical examiner would be required.
The Office informed appellant’s attorney that Dr. Horowitz had advised that he no longer
performed “this type of examination.” It referred appellant for an impartial medical evaluation

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with Dr. Barry A. Silver, a Board-certified orthopedic surgeon, on September 8, 2006. Dr. Silver
completed a report on November 3, 2006 which reviewed appellant’s history of injury as well as
the medical history. He performed a physical examination and found normal range of motion in
the wrists. Dr. Silver found good grip strength and good pinch with equal thenar eminences and
no evidence of major atrophy. He concluded that her motor power was normal and that
appellant’s sensory testing was 100 percent. Dr. Silver reviewed the EMG and nerve conduction
findings and opined that appellant had reached maximum medical improvement with no
evidence of any residual tendinitis or other permanent impairment under the A.M.A., Guides due
to her accepted carpal tunnel syndrome. He specifically noted that the A.M.A., Guides did not
favor evaluations of grip strength especially when the diagnosis was carpal tunnel syndrome.
The district medical director reviewed Dr. Silver’s report on November 18, 2006 and concurred
with his findings that appellant had no objective basis for an impairment rating. By decision
dated November 20, 2006, the Office denied appellant’s claim for an additional schedule award
based on Dr. Silver’s report.
Appellant requested an oral hearing on November 27, 2006. The hearing representative
affirmed the Office’s November 20, 2006 decision on July 16, 2007. Appellant filed an appeal
with the Board and the Board issued an order remanding case on May 12, 2008 finding that the
record was not complete and requiring the Office to issue an appropriate decision.1 After
securing additional documents, by decision dated July 24, 2008, the hearing representative again
affirmed the Office’s November 20, 2006 decision denying appellant’s claim for an additional
schedule award.
On appeal, appellant’s attorney argues that Dr. Nutt’s supplemental report should be
disregarded as the Office asked him leading questions and as there was improper contact by the
claims examiner and the district medical director. Counsel further argued that the Office should
have requested a supplemental report from Dr. Horowitz and that, because there was no such
report in the record, Dr. Silver was not properly selected to serve as the impartial medical
examiner. He alleged that Dr. Silver failed to mention Dr. Horowitz’ report and therefore his
report was not based on a proper history and that Dr. Silver failed to provide pinch or grip
strength and merely agreed with the district medical director instead of independently resolving
the conflict of medical opinion. Counsel asserted that Dr. Nutt’s initial report should be
accorded the weight of the medical opinion evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
1

Docket No. 08-411 (issued May 12, 2008).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

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good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5
In evaluating carpal tunnel syndrome, the A.M.A., Guides provide that, if after an
optimal recovery time following surgical decompression, an individual continues to complain of
pain, paresthesias or difficulties in performing certain activities three possible scenarios can be
present. The first situation is: “Positive clinical finding of median nerve dysfunction and
electrical conduction delay(s): The impairment due to residual CTS [carpal tunnel syndrome] is
rated according to the sensory and/or motor deficits as described earlier.”6 In this situation, the
impairment due to residual carpal tunnel syndrome is evaluated by multiplying the grade of
severity of the sensory or motor deficit by the respective maximum upper extremity impairment
value resulting from sensory or motor deficits of each nerve structure involved. When both
sensory and motor functions are involved the impairment values derived for each are combined.7
In the second scenario: “Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing of the thenar muscles: a residual CTS is still
present, and an impairment rating not to exceed five percent of the upper extremity may be
justified.” In the final situation: “Normal sensibility (two-point discrimination and SemmesWeinstein monofilament testing), opposition strength, and nerve conduction studies: there is no
objective basis for an impairment rating.”8
To accurately evaluate sensory impairment clinically and reduce the subjective nature of
these findings,9 the A.M.A., Guides recommend either the two-point test for fine discrimination,
the monofilament touch-pressure threshold test or the pinprick test.10
Grip strength is used to evaluate power weaknesses related to the structures in the hand
wrist or forearm.11 The A.M.A., Guides do not encourage the use of grip strength as an
impairment rating because strength measurements are functional tests influenced by subjective
factors that are difficult to control and the A.M.A., Guides for the most part is based on anatomic
impairment. Thus the A.M.A., Guides does not assign a large role to such measurements. Only
4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

A.M.A., Guides 495.

7

Id. at 494, 481.

8

Id. at 495.

9

Id. at 446.

10

Id. at 445.

11

Id. at 508, 16.8b.

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in rare cases should grip strength be used, and only when it represents an impairing factor that
has not been otherwise considered adequately.12 The A.M.A., Guides state, “Otherwise, the
impairment ratings based on objective anatomic findings take precedence.” (Emphasis in the
original.)13
ANALYSIS
There was a conflict of medical opinion evidence between appellant’s physician,
Dr. Diamond, an osteopath, and the Office second opinion physician, Dr. Mandel, a Boardcertified orthopedic surgeon, regarding the extent of appellant’s impairment for schedule award
purposes. Dr. Diamond found that appellant had 40 percent impairment of the median nerve
bilaterally, while Dr. Mandel found that appellant had 10 percent impairment due to loss of grip
strength. The Act provides that, if there is a 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.14 The implementing regulations state 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 or consultant, 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 had no
prior connection with the case.15
The Board finds, however, that the Office improperly referred appellant for an impartial
examination with Dr. Nutt, a Board-certified orthopedic surgeon, after it bypassed Dr. Horowitz,
a Board-certified orthopedic surgeon, on the grounds that the commute was too extensive when
the distance was comparable to both physicians as argued by appellant’s attorney and found by
the hearing representative. As Dr. Nutt was not properly selected under the Office’s rotational
selection to serve as an impartial medical specialist, his report is not entitled to special weight
and cannot resolve the existing conflict of medical opinion evidence. The Board notes that, as
Dr. Nutt cannot serve as the impartial medical specialist, the allegations of improper conduct or
leading questions made by appellant’s attorney are harmless error.
On remand from the Branch of Hearings and Review, the Office properly referred
appellant to Dr. Horowitz, a Board-certified orthopedic surgeon, to resolve the conflict. In a
report dated September 1, 2004, Dr. Horowitz reviewed the medical records and statement of
accepted facts. He diagnosed, “status post release of bilateral carpal tunnel syndromes due to
work-related injury with complete recovery.” Dr. Horowitz noted that grip strength was tested in
a “gross manner” and that there “appears to be suboptimal grip efforts bilaterally, although they
appeared to be symmetric and without focal deficit.” He recommended a functional capacity
evaluation to determine if appellant was demonstrating suboptimal performance on grip strength
12

Id. at 507, 16.8 Strength Evaluation; Cerita J. Slusher, 56 ECAB 532 (2005); Mary L. Henninger, 52 ECAB
408, 409 (2001).
13

A.M.A., Guides 508.

14

5 U.S.C. §§ 8101-8193, 8123.

15

20 C.F.R. § 10.321.

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testing. Dr. Horowitz concluded that appellant had 10 percent impairment secondary to
decreased grip strength. On May 31, 2006 the district medical director disagreed with
Dr. Horowitz’ opinion as it was based on a subjective loss of strength. The Board finds that, as
Dr. Horowitz recommended additional testing, the hearing representative properly determined
that a supplemental report was necessary before this report was sufficiently well rationalized to
constitute the weight of the medical opinion evidence. However, the record reflects that
Dr. Horowitz was unwilling to provide a supplemental report. When the impartial specialist is
unable to clarify or elaborate on his original report or if his supplemental report is also vague,
speculative or lacking in rationale, the Office must submit the case record and a detailed
statement of accepted facts to a second impartial specialist for the purpose of obtaining his
rationalized medical opinion on the issue.16
The Board finds that the Office, therefore, properly determined that an additional
impartial medical examination was necessary and appropriately referred appellant to Dr. Silver, a
Board-certified orthopedic surgeon, to resolve the existing conflict of medical opinion evidence.
Dr. Silver completed a report on November 3, 2006 which reviewed appellant’s history of injury
as well as the medical history. He performed a physical examination and found normal range of
motion in the wrists, good grip strength and good pinch with equal thenar eminences and no
evidence of major atrophy. Dr. Silver concluded that her motor power was normal and that
appellant’s sensory testing was 100 percent. He agreed that appellant had reached maximum
medical improvement with no evidence of any residual tendinitis or other permanent impairment
under the A.M.A., Guides due to her accepted carpal tunnel syndrome. The district medical
director reviewed Dr. Silver’s report on November 18, 2006 and concurred with his findings that
appellant had no objective basis for an impairment rating.
Dr. Silver’s report was based on a proper history of injury and medical history. The
Board notes that it is not necessary for the impartial medical examiner to specifically state that he
has reviewed every medical report in the record in order to provide an adequate history of the
claim. Dr. Silver reviewed the appropriate sections of the A.M.A., Guides and noted that
appellant had normal findings on nerve conduction, no findings on physical examination and that
she therefore had no impairment for carpal tunnel syndrome under the A.M.A., Guides. He also
noted that the A.M.A., Guides do not favor grip or pinch strength measurements and opined that
these measurements were not appropriate based on his physical evaluation of appellant.
Dr. Silver while agreeing with the application of the A.M.A., Guides, previously made by the
district medical director, provided his independent findings and conclusions. The Board finds
that Dr. Silver’s report is entitled to the weight of the medical evidence and establishes that
appellant has no more than 10 percent impairment of each of her upper extremities for which she
has received a schedule award.
CONCLUSION
The Board finds that appellant has no more than 10 percent impairment of each of her
upper extremities for which she has received a schedule award.

16

Raymond A. Fondots, 53 ECAB 637, 641 (2002).

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ORDER
IT IS HEREBY ORDERED THAT July 24, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 7, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE NATIONAL GUARD, Meridian, MS,
Employer
__________________________________________

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

Docket No. 12-1267
Issued: November 2, 2012

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 May 15, 2012 appellant filed a timely appeal from a January 13, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying a schedule award for an
employment-related hearing loss and a May 8, 2012 nonmerit hearing representative’s decision
denying his request for a hearing. 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 the
case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a ratable hearing loss entitling him to a schedule award; and (2) whether OWCP
properly denied his February 16, 2012 request for an oral hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 7, 2011 appellant, then a 59-year-old aircraft mechanic supervisor, filed an
occupational disease claim alleging that he sustained bilateral hearing loss as a result of noise
exposure from jet aircraft and aerospace ground equipment at work for 35 years. He experienced
ringing in his ears and had difficulty understanding normal conversational speech. Appellant
first realized his condition resulted from his employment on September 6, 2002. He retired on
February 1, 2010.
On September 12, 2011 OWCP advised appellant that no evidence was submitted to
support his claim and requested additional factual information. Appellant was requested to
provide information regarding his employment history, when he related his hearing loss to his
employment conditions and a history of other nonoccupational exposure to noise. OWCP also
requested that he provide medical documentation pertaining to any treatment he received for ear
or hearing problems. It requested that the employing establishment provide noise survey reports
for each site where appellant worked, the sources and period of noise exposure for each location
and whether he wore ear protection.
In a September 2011 statement, appellant outlined his employment history. He worked in
several aviation-related positions during his career and was exposed to starting in January 1971.
Appellant worked as an aircraft mechanic, did technical and maintenance work, a crew chief and
a maintenance coordinator and supervisor. He wore ear protection but was exposed to the noise
of aircraft, diesel and electrical engines, turbines and other equipment six to seven hours a day
over a period of years. The employment history was extensive and detailed. It showed a long
period of exposure to a variety of noise sources associated with aircraft operation, support and
repair. Appellant stated that he did not have a prior history of hearing problems and that he was
no longer exposed to hazardous noise at work after February 1, 2010. He first noticed his
hearing loss in September 2002 when he underwent an audiogram and audiological evaluation
and the doctor discussed his hearing loss with him. Appellant also noted that he periodically
engaged in deer hunting with a rifle.
In an October 4, 2011 letter, the employing establishment responded to OWCP’s
development letter. It submitted various personnel records, noise survey reports, audiograms
from June 4, 1974 to January 8, 2011, handwritten employee health notes and position
descriptions for the various jobs appellant performed.
In a January 23, 2003 audiological evaluation, Judy F. Hammack, an audiologist, related
that appellant worked for the National Guard for 32 years and noted his complaints of tinnitus in
his right ear and occasional bouts of vertigo. The audiologist reported that audiometric testing
revealed a mild drop in thresholds in the high frequencies in the left ear and a more severe drop
in thresholds in the right ear. Tympanometry further showed normal middle ear function. An
audiogram conducted on that date reflected testing at 500, 1,000, 2,000 and 3,000 hertz (Hz) and
showed the following decibel losses: 15, 20, 5 and 30 in the right ear and 0, 5, 0 and 15 in the
left ear.
By letter dated December 2, 2011, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Bryan M. Clay, a Board-certified otolaryngologist,

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for a second opinion as to whether appellant sustained hearing loss causally related to his federal
employment.
In a December 13, 2011 medical report, Dr. Clay reviewed appellant’s medical records
and noted that several hearing tests from the mid-1970s revealed normal hearing in both ears.
He reported that the current audiometric findings demonstrated a significant dip in high
frequency hearing in both ears that was in excess of normal presbycusis. Dr. Clay opined that
appellant’s exposure to loud noises at his employing establishment was sufficient as to intensity
and duration to have caused his hearing loss. He diagnosed moderate to high frequency bilateral
sensorineural hearing loss and opined that the hearing loss was a result of appellant’s history of
noise exposure in his federal employment. An audiogram conducted that day reflected testing at
500, 1,000, 2,000 and 3,000 Hz and showed the following decibel losses: 15, 15, 15 and 55 in
the right ear and 10, 10, 15 and 40 in the left ear. Dr. Clay recommended hearing protection and
stated that he may require hearing aids as his hearing loss progressed.
In a January 11, 2012 report, OWCP’s district medical adviser reviewed Dr. Clay’s
findings and diagnosed bilateral sensorinueral hearing loss. He further determined that appellant
had no ratable hearing loss and did not authorize hearing aids.
In a decision dated January 13, 2012, OWCP accepted appellant’s claim for hearing loss
but determined that his hearing loss was not severe enough to be considered ratable under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2009) (A.M.A., Guides).
In a letter dated February 15, 2012, addressed to the claims examiner, appellant disagreed
with the January 13, 2012 decision. He stated that, when he attended the second opinion
examination, the first person who administered the hearing test had difficulty testing him and a
second person was brought in to administer the test. The second individual did not have any
difficulty administering the examination.
By appeal request form postmarked February 16, 2012 and received by OWCP on
February 23, 2012, appellant requested a review of the written record and an oral hearing.
By decision dated May 8, 2012, OWCP’s hearing representative denied appellant’s
request for an oral hearing as untimely. The hearing representative found that the most recent
OWCP decision was issued on January 13, 2012 but appellant’s request was postmarked on
February 16, 2012, more than 30 days after the January 13, 2012 decision. OWCP indicated that
it had exercised its discretion and further denied appellant’s request finding that the relevant
issue of the case could be equally addressed by requesting reconsideration and submitting
evidence not previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
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
2

5 U.S.C. §§ 8101-8193.

3

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 Hz, 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.4 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.5 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.6
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.7 The A.M.A., Guides state that, if tinnitus
interferes with Activities of Daily Living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoying of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s schedule award claim because
the evidence of record does not establish that he sustained a ratable hearing loss.
OWCP referred appellant’s claim to Dr. Clay for a second opinion examination. In a
December 13, 2011 medical report, Dr. Clay noted that several hearing tests from the mid-1970s
revealed normal hearing in both ears and stated that the current audiometric findings
demonstrated a significant dip in high frequency hearing in both ears that was in excess of
normal presbycusis. He diagnosed moderate to high frequency bilateral sensorineural hearing
3

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

4

See A.M.A., Guides 250.

5

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

6

J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b) (2) (b) (September 2010).
7

See A.M.A., Guides 249.

8

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

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loss and opined that the hearing loss was a result of appellant’s history of noise exposure in his
federal employment. In a report dated January 11, 2012, OWCP’s medical adviser concurred
with Dr. Clay’s findings and concluded that appellant had no ratable hearing loss to warrant a
schedule award according to the A.M.A., Guides. Hearing aids were not authorized. By
decision dated January 13, 2012, OWCP accepted appellant’s claim for bilateral hearing loss but
denied his schedule award claim finding that his hearing loss was not severe enough to be
considered ratable.
The Board finds that OWCP’s medical adviser correctly determined that appellant did not
sustain a ratable hearing loss. An audiogram conducted on December 13, 2011 reflected testing
at 500, 1,000, 2,000 and 3,000 Hz and showed the following decibel losses: 15, 15, 15 and 55 in
the right ear and 10, 10, 15 and 40 in the left ear. These thresholds total 100 and 75 decibels,
respectively, for averages of 25 and 18.75 decibels. The fence of 25 decibels is then subtracted
from each average. After the fence was subtracted, appellant had no ratable hearing loss and he
is deemed to have no impairment in his ability to hear everyday sounds under everyday listening
conditions.9 This does not mean that he has no hearing loss, but only that the degree of his
hearing loss is not sufficient to establish a permanent impairment pursuant to the A.M.A.,
Guides. Thus, the Board finds that OWCP’s medical adviser properly determined that appellant
had no ratable hearing loss and that OWCP properly denied his claim for schedule award.
Appellant has also alleged that he is entitled to a schedule award because he has tinnitus,
which causes ringing in his ears. FECA does not list tinnitus in the schedule of eligible
members, organs or functions of the body. While the A.M.A., Guides allow for up to a five
percent award if tinnitus interferes with ADL, the award for tinnitus can only be added to a
measurable binaural hearing impairment. The Board has repeatedly held that there is no basis for
paying a schedule award for a condition such as tinnitus unless the evidence establishes that the
condition caused or contributed to a ratable hearing loss. Since appellant did not have a
measurable hearing impairment, he is also not entitled to an award for tinnitus.10
On appeal, appellant contends that the second opinion examination was improperly
conducted and may have led to an improper rating. While he noted that the first individual who
attempted the hearing test, during the December 2011 second opinion evaluation had difficulty
administering the test, he also stated that a second individual then administered a complete
examination without problem. Appellant has not submitted any evidence to demonstrate that the
second opinion examination was performed incorrectly.
Appellant may request a schedule award or increased schedule award based on evidence
of new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

9

See L.F., Docket No. 10-2115 (issued June 3, 2011).

10

See D.P., Docket No. 12-666 (issued August 9, 2012).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.11
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.12 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.13 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.14 OWCP procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).15
ANALYSIS -- ISSUE 2
By decision dated January 13, 2012, OWCP denied appellant’s schedule award claim.
Appellant had 30 calendar days from this decision, or until February 12, 2012, to request an oral
hearing. Because a letter requesting an appeal was dated February 15, 2012 and his appeal form
was postmarked February 16, 2012, his request was untimely. The Board finds that appellant
was not entitled to an oral hearing as a matter of right under section 8124(b)(1) of FECA. In its
May 8, 2012 decision, OWCP further exercised its discretion to grant an oral hearing and denied
his request on the grounds that he could equally well address the relevant issue in his case by
requesting reconsideration. Because reconsideration exists as an alternative appeal right to
address the issue raised by OWCP’s January 13, 2012 decision, the Board finds that it did not
abuse its discretion in denying appellant’s untimely request for an oral hearing.16
CONCLUSION
The Board finds that appellant has not established a ratable hearing loss entitling him to a
schedule award. The Board further finds that OWCP properly denied his request for an oral
hearing as untimely filed.

11

5 U.S.C. § 8124(b)(1).

12

20 C.F.R. §§ 10.616, 10.617.

13

Id. at § 10.616(a).

14

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

15

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
16

See Gerard F. Workinger, 56 ECAB 259 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 8 and January 13, 2012 are affirmed.
Issued: November 2, 2012
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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0868
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from January 11 and March 1, 2019
merit decisions 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 to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish disability
from work during the period April 24, 2018 through January 10, 2019, causally related to his
accepted September 27, 2017 employment injury; (2) whether OWCP has met its burden of proof
to terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the March 1, 2019 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury; and (3) whether appellant has met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
FACTUAL HISTORY
On September 27, 2017 appellant, then a 60-year-old clerk/lobby director, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he injured his lower back when he slipped
and fell as he walked from a pickup window while in the performance of duty. He stopped work
on September 28, 2017.
On November 27, 2017 OWCP accepted appellant’s claim for contusions of the lower back
and pelvis, initial encounter. It paid him wage-loss compensation on the supplemental rolls from
November 12, 2017 to March 2, 2018 and on the periodic rolls from March 4 to 31, 2018.
On March 28, 2018 appellant returned to a part-time modified position for five hours per
day as a clerk, but later stopped work on April 24, 2018.
OWCP received an April 26, 2018 progress note by Dr. Dale A. Helman, a Board-certified
neurologist, who noted a history of injury that approximately seven months prior, appellant slipped
and fell backwards and severely twisted his lumbar spine at work . Dr. Helman reported findings
on physical examination and provided an impression that it was “very likely there is some sort of
nerve impingement.” He performed an electromyogram/nerve conduction velocity (EMG/NCV)
study on the same date of his examination and reported that it was abnormal due to right L5-S1
radiculopathy.
On May 11, 2018 appellant filed a claim for compensation (Form CA-7) seeking for
disability from work from April 24 through May 4, 2018.
In support of his claim, appellant submitted medical reports dated April 24, 2018 from
Dr. Timothy Wilken, an attending family practitioner. In these reports, Dr. Wilken noted a history
of appellant’s September 27, 2017 employment injury and diagnosed lumbar radiculopathy,
lumbar and cervical strains, contusion of the lumbar region, and low back pain. He advised that
he was unable to work until his next scheduled appointment in four weeks.
OWCP, in a May 21, 2018 development letter, informed appellant that the evidence
submitted was insufficient to establish disability from April 24 to May 4, 2018 and requested that
he submit additional evidence to establish his claim. It afforded him 30 days to submit the
necessary evidence.
OWCP received an additional report dated May 22, 2018 by Dr. Wilken who reiterated
appellant’s history of injury and repeated his prior diagnoses of lumbar radiculopathy, lumbar and
cervical strains, contusion of the lumbar region, and low back pain. Additionally, Dr. Wilken
continued to advise that appellant was unable to work until his next scheduled appointment in four
weeks.
Appellant filed additional CA-7 forms claiming compensation for disability from work
from May 4 to 31, and June 2 to 30, 2018.
2

In support of his claims, appellant submitted a May 22, 2018 duty status report (Form CA17) from Dr. Wilken who provided diagnoses “due to injury” of lumbar and cervical strains.
Dr. Wilken placed appellant off work.
By development letter dated July 9, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish his claims for disability compensation commencing
April 24, 2018, but that he would be referred to a second opinion examination by a Board-certified
specialist.
OWCP thereafter received a July 5, 2018 EMG/NCV study by Dr. Helman, who reported
bilateral C6-7 radiculopathy and bilateral carpal tunnel syndrome.
On July 16, 2018 OWCP referred appellant’s claim, the case record, a statement of
accepted facts (SOAF), and a series of questions to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether he continued to have
residuals and disability causally related to his accepted September 27, 2017 employment injury.
In narrative reports and a Form CA-17 report dated July 17, 2018, Dr. Wilken reiterated
his prior assessments of appellant’s lumbar and cervical conditions and opinion that he was unable
to work. He also provided a diagnosis of herniated lumbar disc with myleopathy. In the Form
CA-17 report, Dr. Wilken again provided diagnoses of cervical and lumbar strains “due to injury.”
Appellant continued to file CA-7 forms claiming compensation for disability from work
from July 28 to August 24, 2018.
In support thereof, appellant submitted reports dated June 19 and August 14, 2018 from
Dr. Wilken, who continued to restate his prior assessments of appellant’s lumbar and cervical
conditions and opinion that he could not work. On an August 14, 2018 Form CA-17 report
Dr. Wilken listed the date of injury as September 27, 2017 and again reiterated his prior diagnosis
of herniated lumbar disc with myelopathy “due to injury.”
In a July 26, 2018 report, Dr. Mark W. Howard, a Board-certified orthopedic surgeon,
noted that appellant presented for consultation regarding lumbar spine problems he had since
September 27, 2017. He discussed his examination findings and reviewed diagnostic test results.
Dr. Howard provided diagnoses of low back pain and bilateral lower extremity radicular pain in
the setting of mod-large right L4-5 disc bulge, L5-S1 disc degeneration, right L4 greater than right
L5 foraminal stenosis, left L5 greater than left L4 foraminal stenosis, L5 -S1 greater than L4-5
spondylolisthesis with demonstrated sagittal plane instability, and right L5-S1 radiculopathy based
on Dr. Helman’s April 26, 2018 EMG/NCV study.
Dr. Swartz, in an August 8, 2018 report, reviewed the SOAF and appellant’s medical
record. He reported his findings on examination and diagnosed lumbar and cervical strains, lumbar
contusion, and lumbar radiculopathy. Dr. Swartz noted that a February 8, 2018 magnetic
resonance imaging (MRI) scan study of the lumbar spine revealed no signal abnormalities of the
lumbar spine or spinal cord/cauda equine, and no paravertebral soft tissue abnormality, marrow
replacing lesion, or marrow edema, which indicated that appellant’s claim of hitting his low back
against a pole when he fell was in question and would be a minor event at most as none of these
signals showed up on the MRI scan study reflecting a contusion of any significance. He indicated
that an examination by Dr. Wilken on October 10, 2017 did not reveal any muscle spasm in the
3

lumbar spine which would basically rule out an injury of any significance whether it was a strain
or contusion. Dr. Swartz further indicated that his examination revealed a normal range of motion
of the lumbar spine, slight tenderness only and without any spasm in the neck and upper or lower
back, and normal neurologic examination of the lower extremities. He opined that the injuries
regarding appellant’s claim had resolved, and no further treatment was required. Dr. Swartz
further opined that he had an aggravation of preexisting lumbar conditions that ceased on the date
of his examination. He concluded that appellant was capable of returning to his position as a
clerk/lobby director which was basically his date-of-injury position. In an accompanying work
capacity evaluation (Form OWCP-5c) of even date, Dr. Swartz advised that appellant could not
perform his usual job without restrictions, but he could work eight hours per day with specific
physical restrictions.
Appellant filed several additional CA-7 forms claiming compensation for intermittent
periods of disability from August 25 to December 14, 2018.
In additional narrative reports and Form CA-17 reports dated June 19, August 14,
September 11, October 9, and November 6, 2018, Dr. Wilken reiterated his prior lumbar and
cervical assessments and opinion that appellant was unable to work. In the October 9 and
November 6, 2018 Form CA-17 reports, he continued to list the date of injury as September 27,
2017, indicate that appellant’s diagnoses of herniated lumbar disc, lumbar strain with
radiculopathy, and cervical strain were “due to injury,” and advise that he was unable to work.
Dr. Howard, in an August 14, 2018 report, reiterated his prior diagnoses of low back pain,
bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy based on Dr. Helman’s April 26, 2018 EMG/NCV
study.
In a November 11, 2018 report, Dr. Scott Prysi, a family practitioner, noted a date of injury
as September 27, 2017. He discussed findings on examination and provided diagnoses of lumbar
radiculopathy, lumbar strain, lumbar region contusion, and low back pain. Dr. Prysi advised that
appellant could perform modified work with restrictions until his next scheduled appointment.
On November 21, 2018 Dr. Victor Li, Board-certified in pain medicine, reported a history
of the September 27, 2017 employment injury. He also reported examination findings and
reviewed diagnostic test results. Dr. Li provided diagnoses of myofascial pain, and spondylosis
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary.
By notice dated December 11, 2018, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits based on Dr. Swartz’s opinion that the accepted
conditions had ceased without residuals and that he was not disabled from work. It afforded him
30 days to submit additional evidence or argument challenging the proposed action.
OWCP subsequently received narrative reports and a Form CA-17 dated December 17,
2018 from Dr. Prysi who restated his prior diagnoses of lumbar radiculopathy, lumbar strain,
lumbar region contusion, and low back pain, and his opinion that appellant could perform modified
work until his next scheduled appointment. In the December 17, 2018 Form CA-17 report,
4

Dr. Prysi listed September 27, 2017 as the date of injury and provided diagnoses of lumbar spine
strain and radiculopathy “due to injury.” He advised that appellant could work with restrictions.
In a letter of even date, Dr. Prysi noted that he had reviewed Dr. Swartz’s August 8, 2018 report3
and disagreed with his findings. He noted that appellant had a baseline pain level of 7 out of 10
and he was unable to sit or stand for more than 30 minutes. Dr. Prysi further noted that, based on
his physical examination, he could not lift more than 10 pounds at work. He maintained that it
was not possible for appellant to return to full-duty work.
OWCP also received a September 27, 2017 lumbar spine x-ray report by Dr. Tracy Chen,
a diagnostic radiologist, who provided impressions of no acute osseous pathology, grade 1
anterolisthesis of L5-S1, degenerative disc disease at L5-S1, and mild multilevel degenerative
arthrosis.
By decision dated January 11, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, finding that Dr. Swartz’s opinion was
entitled to the weight of the medical evidence.
OWCP thereafter received an additional Form CA-17 report dated January 14, 2019 from
Dr. Prysi. Dr. Prysi continued to note September 27, 2017 as the date of injury, provide a diagnosis
of lumbar strain “due to injury,” and opine that appellant could work with restrictions.
On January 6, 2019 appellant filed another Form CA-7 seeking compensation for disability
from December 14, 2018 to January 11, 2019. On the reverse side of the claim form the employing
establishment noted that he did not sign its job offer for modified work. 4
Dr. Prysi, in a January 14, 2019 narrative report, restated appellant’s lumbar assessments
and opinion that he could perform modified work until his next scheduled appointment.
In a January 16, 2019 progress report, Dr. Li diagnosed contusion of the lower back. He
noted that appellant did not work and restated his prior opinion that appellant’s work status was
permanent and stationary.
OWCP, by decision dated March 1, 2019, denied appellant’s claims for compensation for
the period April 24, 2018 through January 10, 2019, finding that the medical evidence of record
was insufficient to establish that the claimed disability was causally related to his accepted
September 27, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
3

The Board notes that it appears that Dr. Prysi inadvertently indicated that the date of Dr. Swartz’s report was dated
November 19, 2018 rather than August 8, 2018 as the only report of record by Dr. Swartz is dated August 8, 2018.
4

On January 18, 2019 the employing establishment offered appellant a modified clerk position based on the medical
documentation from his treating physician. Appellant rejected the job offer contending that it did not meet his
physician’s restrictions.
5

Supra note 1.

5

compensation is claimed is causally related to the employment injury.6 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.7 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.8
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.9 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.10
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.11 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the claimed disability and the accepted employment injury.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury.
In support of his claims for compensation, appellant submitted a series of reports from
Dr. Wilken. In Form CA-17 reports dated May 22 through November 6, 2018, Dr. Wilken noted
diagnoses of herniated lumbar disc, lumbar strain with radiculopathy, and cervical strain “due to
injury” on September 27, 2017. Although he found employment-related disability in these reports,
they are of limited probative value in establishing appellant’s claim for disability during the period
April 24, 2018 through January 10, 2019 as he did not explain why he was disabled during this
time period due to objective medical findings of his accepted conditions. To establish a period of
disability the medical evidence must provide a discussion of how objective medical findings
attributable to the accepted conditions support a finding that appellant could not perform his job
6

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020);
F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
8

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

9

Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

11

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

12

Id

6

duties.13 A medical opinion is of limited value if it is conclusory in nature. 14 In narrative reports
dated April 24 through November 6, 2018, Dr. Wilken reiterated his prior nonaccepted diagnoses
of lumbar radiculopathy, lumbar strain, cervical strain, herniated lumbar disc. He also diagnosed
contusion of the lumbar region and low back pain. Dr. Wilken opined that appellant was totally
disabled from work. However, he did not relate appellant’s disability to the accepted
September 27, 2017 employment injury and the opinion is therefore of diminished probative
value.15 For these reasons, the Board finds that Dr. Wilken’s reports are insufficient to establish
appellant’s disability claim.
Dr. Helman’s April 26, 2018 progress note related a history of the September 27, 2017
employment injury and indicated that it was “very likely there is some sort of nerve impingement”
of the lumbar spine. The Board finds his opinion is speculative and equivocal and therefore,
insufficient to establish her burden of proof. 16
In reports dated April 26 and July 5, 2018, Dr. Helman provided EMG/NCV study results.
The Board has consistently held that diagnostic test studies, standing alone, lack probative value
as they do not address whether the accepted employment injury caused the diagnosed condition.17
For these reasons, the Board finds that the medical evidence from Dr. Helman is insufficient to
establish appellant’s disability claim.
Dr. Howard’s July 26 and August 14, 2018 reports provided diagnoses of low back pain
and bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy. He noted that appellant had lumbar spine problems
since September 27, 2017. Dr. Li, in a report dated November 21, 2018, noted a history of the
September 27, 2017 employment injury and provided diagnoses of myofascial pain, spondylosis,
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary. Neither physician offered an opinion as to whether appellant was disabled from
work due to the accepted employment injury.18 Accordingly, the reports of Dr. Howard and Dr. Li
are of no probative value and are insufficient to establish the claimed period of disability.

13

See M.M., Docket No. 19-0061 (issued November 21, 2019); W.E., Docket No. 17-0451 (issued
November 20, 2017).
14

See R.B., Docket No. 19-1527 (issued July 20, 2020); R.S., Docket No. 19-1774 (issued April 3, 2020).

15

See J.K., Docket No. 19-0488 (issued June 5, 2020); M.M., supra note 13; E.B., Docket No. 17-0875 (issued
December 13, 2018).
16

See G.H., Docket No. 20-0892 (issued July 9, 2021); I.J., 59 ECAB 408 (2008).

17

See T.G., Docket No. 20-0032 (issued November 10, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019).

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

7

Dr. Chen’s September 27, 2017 lumbar spine x-ray report is insufficient to establish
disability as it predates and, therefore, does not address the claimed period of disability. 19
Dr. Swartz, the second opinion physician, in an August 8, 2018 report and Form OWCP5c, opined that appellant’s accepted September 27, 2017 employment-related conditions and
aggravation of preexisting lumbar conditions had resolved and no further treatment was required.
He further opined that appellant was not totally disabled from work and he was capable of returning
to his clerk/lobby director position. Dr. Swartz reasoned that a February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his essentially normal
examination findings, with the exception of slight tenderness, revealed no objective residuals of
the accepted conditions. As Dr. Swartz reviewed the medical record and supported his conclusion
with medical rationale, the Board finds that his report represents the weight of th e evidence
regarding appellant’s claims for total disability.20
Dr. Prysi reviewed Dr. Swartz’s August 8, 2018 report, and in a December 17, 2018 letter,
disagreed with his conclusion that appellant could return to full-duty work because his pain level
and inability to sit or stand for more than 30 minutes and lift more than 10 pounds at work
prevented him from returning to work. His November 11 and December 17, 2018 narrative reports
provided diagnoses of lumbar radiculopathy, lumbar strain, lumbar region contusion, and low back
pain. Dr. Prysi also provided appellant’s work restrictions but did not opine that he was ever totally
disabled from work for the claimed period due to his September 27, 2017 employment injury.21
His remaining December 17, 2018 Form CA-17 report reiterated his diagnoses of lumbar spine
strain and lumbar radiculopathy and found that the diagnosed conditions were due to the
September 27, 2017 employment injury. Dr. Prysi did not, however, provide an opinion or specify
that appellant’s ability to perform modified-duty work was due to his September 27, 2017
employment injury.22 For these reasons, his reports are insufficient to overcome the weight
accorded to Dr. Swartz’s second opinion report or to create a conflict in the medical opinion
evidence.23
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period April 24, 2018 through January 10, 2019 causally related to his accepted
September 27, 2017 employment injury, the Board finds that appellant has not met his burden of
proof.

19

See M.L., Docket Nos. 18-1058 and 18-1224 (issued November 21, 2019); D.J., Docket No. 18-0200 (issued
August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).
20
21

See M.L., id.
Supra note 18.

22

See M.M., Docket No. 18-0817 (issued May 17, 2019); see also supra note 18.

23

See id.

8

LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.24 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 25 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background. 26
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 27 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 11, 2019, as he no longer had disability or
residuals causally related to his accepted September 27, 2017 employment injury.
As previously discussed, Dr. Swartz, in his comprehensive August 8, 2018 second opinion
report, explained that there were no objective findings based on the February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his own essentially
normal examination findings which supported ongoing residuals or disability due to appellant’s
accepted September 27, 2017 employment injury. He opined that appellant could return to his
clerk/lobby director position and he did not require further medical treatment.
Subsequent to Dr. Swartz’s evaluation, appellant was evaluated by Dr. Wilken on
September 11, 2018, Dr. Howard on August 14, 2018, Dr. Li on November 21, 2018, and Dr. Prysi
on November 11 and December 17, 2018. As previously discussed, none of these physicians
provided a well-reasoned explanation as to why appellant continued to have residuals or disability
for work due to the September 27, 2017 employment injury.
Appellant submitted Dr. Chen’s September 27, 2017 lumbar spine x-ray report and
Dr. Helman’s April 26, 2018 EMG/NCV study report. The Board has held, however, that

24

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
25

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
26

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

27

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

28

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

9

diagnostic studies, standing alone, lack probative value on the issue of causal relationship as they
do not address whether the implicated employment factors caused the diagnosed conditions. 29
The Board finds Dr. Swartz’s well-rationalized opinion to be probative evidence and
reliable and sufficient to justify OWCP’s termination of wage-loss compensation and medical
benefits, effective January 11, 2019.30 The medical evidence from appellant’s physicians is
insufficient to overcome the weight accorded to Dr. Swartz’s second opinion or to create a
conflict.31 OWCP, therefore, has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury. 32 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.33
ANALYSIS -- ISSUE 3
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
Subsequent to the termination of his wage-loss compensation and medical benefits,
appellant submitted reports dated January 14, 2019 from Dr. Prysi. In a January 14, 2019 Form
CA-17 report, Dr. Prysi diagnosed lumbar strain due to the September 27, 2017 employment injury
and advised that appellant could work with restrictions. In a narrative report of even date, he
restated his prior diagnoses of lumbar radiculopathy, strain, and contusion, and low back pain.
Dr. Prysi also reiterated his prior opinion that appellant could perform modified work. However,
he failed to explain with rationale why the work restrictions were causally related to the
September 27, 2017 employment injury.34 Consequently, Dr. Prysi’s reports are of diminished
probative value and insufficient to establish continuing employment-related residuals or disability.
In his January 16, 2019 progress report, Dr. Li diagnosed lower back contusion. He
indicated that appellant did not work and again opined that appellant’s work status was permanent
29

See J.H., Docket No. 17-1916 (issued January 9, 2019); T.H., Docket No. 17-0025 (issued July 6, 2017).

30

V.D., Docket No. 19-0979 (issued February 5, 2020); T.W., Docket No. 18-1573 (issued July 19, 2019); M.C.,
Docket No. 18-1199 (issued April 5, 2019); see also A.C., Docket No. 16-1670 (issued April 6, 2018).
31

See M.M., supra note 13.

32

See J.N., Docket No. 20-1030 (issued November 20, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
L.C., Docket No. 18-1759 (issued June 26, 2019).
33

Id.

34

See D.Y., Docket No. 20-0112 (June 25, 2020).

10

and stationary. Dr. Li did not, however, provide a rationalized opinion as to whether appellant’s
disability was causally related to the accepted employment injury. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains a medical
opinion which is unsupported by medical rationale. 35
Appellant has not submitted rationalized medical evidence establishing continuing
employment-related disability or residuals on or after January 11, 2019 due to the accepted
September 27, 2017 employment injury. As such, the Board finds that he has not met his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury. The Board further finds that OWCP has met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury. The Board also finds that appellant has not met his burden of proof to establish
continuing employment-related disability or residuals on or after January 11, 2019 due to his
accepted employment injury.

35

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

11

ORDER
IT IS HEREBY ORDERED THAT the January 11 and March 1, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2022
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, STATION C,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Hank Royal, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1855
Issued: March 18, 2009

Case Submitted on the Record

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

JURISDICTION
On June 24, 2008 appellant filed a timely appeal from an April 3, 2008 decision of the
Office of Workers’ Compensation Programs that denied her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has a
diagnosed condition that was caused or aggravated by factors of her federal employment.
FACTUAL HISTORY
On March 2, 2006 appellant, then a 58-year-old modified-duty letter carrier who had
stopped work on February 22, 2006, filed an occupational disease claim alleging that factors of
her federal employment caused carpal tunnel syndrome, tendinitis, numbness, pain and weakness
in both legs and left groin pain.1 She submitted medical reports dated February 23 and
1

Appellant filed a Form CA-2a, recurrence claim. The Office, however, adjudicated the claim as an occupational
disease claim.

March 16, 2006 from Dr. Robert A. Fox, a Board-certified neurologist, who advised that
appellant had chronic repetitive motion injuries to her neck and upper extremities resulting from
her work as a letter carrier and cervical and lumbar strains and degenerative disc disease from
prolonged sitting or standing at work. Dr. Fox concluded that all the diagnoses were in part
related to carrying mail and walking up and down stairs.
A telephone conference was held on March 21, 2006 between appellant and the Office.
Appellant stated that a previous recurrence claim was denied in 1998 and that she then returned
to work as an office clerk.2 Her primary tasks were to label mail that required her to stand for a
long period of time. Additional duties included answering the telephone and other clerical
duties. Appellant alleged that the condition of her upper extremities, neck, lower back, left groin
and both legs was worsening. She stated that the employing establishment stopped providing
limited-duty work in January 2006.
By letter dated March 30, 2006, the employing establishment controverted the claim,
advising that appellant had not carried mail in years and had been working in a nonindustrial
injury light-duty position as a lobby director for many years. The employing establishment
described appellant’s job duties and advised that the position required no repetitive use of her
hands, wrists or arms, no pulling, pushing, simple grasping, fine manipulation, reaching above
the shoulder or driving a vehicle and no standing or walking for long periods of time. Lifting
was restricted to five pounds and she could sit, stand and walk at a comfort level.
On April 13, 2006 the Office informed appellant of the evidence needed to support her
claim. In a May 5, 2006 report, Dr. Fox advised that he first evaluated appellant on November 5,
2004 and that she was not working as a letter carrier. He noted that she had a previous history of
bilateral cubital and carpal tunnel syndromes and at the time of his examination was complaining
of imbalance and neck pain radiating into both arms and hands in the C6-7 form distribution and
lower back pain radiating into both legs in an L5 distribution with peripheral neuropathy.
Dr. Fox stated that magnetic resonance imaging (MRI) scan demonstrated degenerative cervical
spine disease at C2-3 and recommended conservative management. He next saw her on
February 24, 2005 with worsening bilateral carpal tunnel syndrome and recommended that she
wear wrist braces. Dr. Fox stated that he last saw appellant on April 28, 2006 when she had
persistent carpal tunnel syndrome findings and tenderness over the lateral epicondyles. He
advised that “the modified work she has been doing now for a significant amount of time does
not need to be changed” and that the newer diagnoses of cervical and lumbar radicular symptoms
should be accommodated. Dr. Fox concluded that “these newer symptoms are not related to
carrying mail.”
In a May 11, 2006 letter, appellant stated that her job duties required consisted of taking
registry sacks, checking every letter and package to verify that it corresponded with the log and
casing mail, which entailed standing, walking, kneeling, bending, stooping, twisting, pushing,
simple grasping, fine manipulation, reaching above the shoulder and answering the telephone.
2

The record also indicates that appellant filed a claim for an injury that occurred on March 4, 1993. The claim
was accepted for bilateral plantar fasciitis and overuse syndrome of the left elbow with chronic tendinitis. By
decision dated November 16, 1998, appellant’s compensation benefits were terminated. On September 28, 1999 an
Office hearing representative affirmed the November 16, 1998 decision.

2

By decision dated June 19, 2006, the Office denied the claim on the grounds that the
medical evidence failed to establish a clear diagnosis caused by factors of employment.
On July 15, 2006 appellant requested a hearing and argued that she had never worked as
a lobby director. She also submitted medical reports from Dr. Esly M. Barreras, who practices
occupational medicine, dating from July 1, 1998 to April 24, 2001 and a March 16, 2006 duty
status report in which Dr. Fox advised that appellant could work eight hours a day and provided
restrictions to her work activities. A light-duty assignment, accepted by appellant on January 10,
2006 pending medical documentation, described work duties as five hours per day as needed to
work in accountable cage and three hours per day as needed for carrier endorsed mail. The
physical restrictions were no lifting over five pounds, no reaching over shoulder, no casing and
no street delivery.
At the hearing held on November 15, 2006, appellant described her modified duty as
mostly sitting and answering the telephone. She stated that beginning in 2000 she was
effectively a lobby director until 2002 and then her duties changed to lots of handwriting and
placing packages, which required standing and reaching. Appellant stated that she changed work
locations in 2004 due to a conflict with her supervisor and coworkers and after that stood most of
the day and that this caused numbness and pain in her hands and shoulder, feet and knee pain.
By decision dated February 6, 2007, an Office hearing representative affirmed the
June 19, 2006 decision on the grounds that the medical evidence was insufficient to establish that
appellant suffered a medical condition causally related to her work activities.
On October 3, 2007 appellant requested reconsideration and submitted a January 24,
2005 MRI scan on the lumbar spine that demonstrated very minor degenerative changes in the
lumbar region with relatively minor disc bulging at the L4-5 level. A February 24, 2005
electromyography (EMG) and nerve conduction study was consistent with moderate bilateral
carpal tunnel syndrome. In a January 25, 2007 report, Dr. Fox stated, “I would suggest that
indeed all the maladies that [appellant] currently experiences in her upper extremities and lower
back that began during her work as a letter carrier never resolved; hence, she never recovered
from her original injury.” In a July 2, 2007 report, he advised that, based on a February 2004
EMG study, appellant had significant bilateral carpal tunnel syndrome. Dr. Fox stated:
“In my opinion, the repetitive motion injuries to the upper extremities led to at
least the symptoms in both hands while carrying mail during years of her work
and as outlined in her personal statement that I had reviewed. In spite of work
modifications in 2006 and later, she continued to have symptoms in her hands
while sorting packages and writing up notices. In addition, her degenerative
cervical and lumbar disc condition is in part related to prolonged sitting and
standing while at work as a letter carrier. The degenerative process would occur
with normal aging, but her activities as a letter carrier could have accelerated this
degenerative process by 50 percent. This is not unusual for a person who
performs carrying mail, reaching and being on her feet. [Appellant’s] spinal
condition may continue to be symptomatic even in sedentary work as she is
currently performing. Repetitive activities with her hands, such as sorting
packages and writing up notices, could aggravate the carpal tunnel diagnosis.”

3

By decision dated April 3, 2008, the Office denied modification of the February 6, 2007
decision on the grounds that Dr. Fox’s opinion was speculative and insufficient to establish
causal relationship.
LEGAL PRECEDENT
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
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim, regardless of whether the asserted claim
involves traumatic injury or occupational disease, an employee must satisfy this burden of
proof.4
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.5 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
3

5 U.S.C. §§ 8101-8193.

4

Roy L. Humphrey, 57 ECAB 238 (2005).

5

20 C.F.R. § 10.5(ee).

6

Roy L. Humphrey, supra note 4.

7

D.G., 59 ECAB ____ (Docket No. 08-1139, issued September 24, 2008).

8

Id.

4

disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a diagnosed condition causally related to the job she was performing at the time she
filed her occupational disease claim in March 2006. The MRI scan and EMG studies submitted
by appellant do not address the cause of the diagnosed conditions. Medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.10 The contemporaneous medical evidence includes
reports from Dr. Fox, an attending neurologist. However, Dr. Fox did not provide a clear
opinion regarding the cause of any medical condition. In February 23 and March 16, 2006
reports, he merely advised that appellant had chronic repetitive motion injuries to her neck and
upper extremities caused by her work as a letter carrier and cervical and lumbar strains and
degenerative disc disease from prolonged sitting or standing at work, concluding that all
conditions were caused by carrying mail and walking up and down stairs. In a May 5, 2006
report, Dr. Fox noted a past history of bilateral cubital and carpal tunnel syndrome, appellant’s
complaints of neck pain radiating into her hands and arms and MRI scan findings of
degenerative cervical spine disease. He advised that appellant could continue her modified work
and that her newer diagnoses of cervical and lumbar radiculopathy were not related to carrying
mail but did not provide an opinion regarding the cause of these conditions. In a July 2, 2007
report, Dr. Fox advised that appellant had significant bilateral carpal tunnel syndrome. While he
initially stated that this was caused by her years of carrying mail and continued repetitive
activities of sorting packages and writing up notices, he stated later in the report that these
repetitive activities could aggravate her carpal tunnel syndrome. Regarding her degenerative
spine and lumbar conditions, Dr. Fox stated that her activities as a letter could accelerate the
degenerative process and she could continue to be symptomatic even in the sedentary work she
was performing. While the medical opinion of a physician supporting causal relationship does
not have to reduce the cause or etiology of a disease or condition to an absolute certainty, neither
can such opinion be speculative or equivocal. The opinion of a physician supporting causal
relationship must be one of reasonable medical certainty that the condition for which
compensation is claimed is causally related to federal employment and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a
complete and accurate medical and factual background of the claimant.11 Furthermore, the fact
that work activities produced pain or discomfort revelatory of an underlying condition does not
raise an inference of causal relationship12 and a diagnosis of “pain” does not constitute the basis
for payment of compensation.13
9

Roy L. Humphrey, supra note 4.

10

Willie M. Miller, 53 ECAB 697 (2002).

11

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

12

Jimmie H. Duckett, 52 ECAB 332 (2001).

13

Robert Broome, 55 ECAB 339 (2004).

5

The Board finds that since Dr. Fox’s opinion was speculative and he did not provide a
rationalized medical opinion regarding the cause of any diagnosed condition, his opinion is
insufficient to establish that appellant sustained an occupational disease caused by the light duty
she was performing in 2006.
CONCLUSION
The Board finds that appellant did not establish that she sustained a medical condition
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2008 be affirmed.
Issued: March 18, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1069
Issued: December 8, 2011

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) February 16, 2011 nonmerit decision. As the last merit
decision in the case was issued on September 21, 2010, the Board lacks jurisdiction over the
merits of the case.1 Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerits of the case.3
1

For decisions of OWCP issued on or after November 19, 2008, the Board’s review authority is limited to
appeals which are filed within 180 days from the date of issuance of OWCP’s decision. 20 C.F.R. § 501.3(e). The
180-day for filing appeal of the September 21, 2010 decision fell on March 21, 2011. As the appeal was filed on
March 22, 2011 and the envelope containing the appeal documents did not present a cancelled postmark, the appeal
was untimely filed. 20 C.F.R. § 501.3(f).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following issuance of the February 16, 2011 OWCP’s decision, appellant submitted new
evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at the time it
issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal
written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 46-year-old practical nurse, filed a traumatic injury claim on August 11,
2010 alleging that she sustained an injury on December 4, 2009 in the performance of duty. She
explained that, while she was trying to pick up a bandage from the floor, she fell out of a
defective chair and onto her right knee.
OWCP sent appellant an initial development letter on August 18, 2010, notifying her that
the evidence she submitted was insufficient to establish her claim. In particular, it noted that she
should submit a medical report with a diagnosis of her condition and a physician’s opinion
explaining how the alleged incident caused the diagnosed condition. Appellant was also
requested to submit further evidence explaining how the incident occurred. She was afforded 30
days to submit the requested evidence; however, no further evidence was received.
By decision dated September 21, 2010, OWCP denied appellant’s claim. It found that
the December 4, 2009 incident occurred as alleged, but that she had not submitted medical
evidence to substantiate that she sustained an injury as a result of this incident.
Appellant filed a request for reconsideration on February 2, 2011, but did not submit any
evidence.
On February 16, 2011 OWCP denied appellant’s request for merit review. It found that
she had not submitted any new legal argument or evidence in support of her claim.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), to require OWCP to reopen a case for merit review, the
evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a point of law,
(2) advance a relevant legal argument not previously considered by it or
(3) constitute relevant and pertinent evidence not previously considered by
OWCP.
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of these three requirements OWCP will deny the application for
review without reviewing the merits of the claim.

2

ANALYSIS
Appellant requested reconsideration on February 2, 2011 but did not submit any further
argument or evidence in support of her request. She therefore failed to show that OWCP
erroneously applied or interpreted a point of law, did not advance any legal argument not
previously considered, and did not submit evidence which constituted new and relevant evidence
not previously considered by OWCP.
Appellant did not meet the requirements of 20 C.F.R. § 10.606(b) and accordingly her
request to reopen her case for further reconsideration on its merits was properly denied.
CONCLUSION
The Board finds that OWCP properly denied appellant’s traumatic injury claim and its
refusal to reopen her case for a further review on its merits pursuant to 5 U.S.C. § 8128(a) did
not constitute an abuse of discretion.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 16, 2011 is affirmed.
Issued: December 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE ARMY, ARLINGTON
NATIONAL CEMETERY, Arlington, VA,
Employer
__________________________________________

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Appearances:
Sharron Campbell, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1437
Issued: January 11, 2010

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 May 22, 2009 appellant filed a timely appeal of the March 24, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of the
claim.1
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
1

The current record includes evidence received after the Office issued its March 24, 2009 decision. The Board’s
review of a case is limited to the evidence in the case record that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c)(1) (2009). The Board further notes that appellant requested oral argument.
Appellant indicated that oral argument was necessary in order to better clarify errors in the paperwork, particularly
with respect to his date of injury. As discussed infra, the current record is devoid of medical evidence. Given the
paucity of both factual and medical information, the Board finds that oral argument would not likely aid in the
resolution of the relevant factual and medical issues. Consequently, the Board, in its discretion, denies appellant’s
request for oral argument. See 20 C.F.R. § 501.5(a), (b).

FACTUAL HISTORY
On February 11, 2009, appellant, a 62-year-old engineering equipment operator, filed a
traumatic injury claim (Form CA-1) for an injury to his shoulder and neck that reportedly
occurred on February 9, 2009. He was allegedly pushing a roll-about tent when he felt a burning
sensation in his shoulder and neck. There were no witness statements as appellant reportedly
was working alone. He claimed to have notified the employing establishment about his injury on
February 10, 2009. In challenging the claim, the employing establishment noted that, while
appellant claimed to have hurt himself in “September 2008,” his supervisor had no knowledge of
this injury until February 2009. The employing establishment further noted that there was no
record of an incident concerning appellant and no work performance issues. In addition,
appellant had not taken any sick or annual leave. The claim form additionally noted that he had
been treated on February 8, 2009 by Dr. David G. Medland, but no medical evidence
accompanied appellant’s traumatic injury claim.
By letter dated February 20, 2009, the Office requested that appellant submit additional
information regarding his claimed February 9, 2009 injury. It sought clarification on when the
injury occurred, noting that appellant reportedly told his employer he was injured in
September 2008, and if the injury occurred in September 2008, the Office questioned why
appellant reportedly waited until February 2009 before bringing it to his supervisor’s attention.
Appellant was also asked to explain how he received medical treatment a day before the alleged
February 9, 2009 injury. The Office also requested a comprehensive medical report, noting that
the record did not include a diagnosis of any condition resulting from the alleged February 9,
2009 injury. Appellant was afforded 30 days to submit the requested factual and medical
information. However, he did not respond within the allotted time frame.
In a decision dated March 24, 2009, the Office denied appellant’s claim because he failed
to establish fact of injury. Appellant not only failed to establish that the February 9, 2009
incident occurred as alleged, but he also failed to submit any evidence of an injury-related
medical diagnosis.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as

2

5 U.S.C. §§ 8101-8193.

2

alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.4 The second component is whether the employment
incident caused a personal injury.5
ANALYSIS
The record is devoid of any medical evidence indicating that appellant sustained an
employment-related neck and/or shoulder injury. Despite the Office’s February 20, 2009 request
for additional information, appellant did not submit any medical evidence whatsoever.
Regardless of whether the alleged tent-pushing incident occurred in September 2008 or
February 2009, there is no medical evidence to prima facie establish that appellant sustained any
type of injury. Accordingly, the Office properly denied the claim.
CONCLUSION
Appellant has not established that he sustained an injury in the performance of duty.

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

3

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2010
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

4