United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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

Docket No. 13-1745
Issued: December 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 18, 2013 appellant, through his attorney, filed a timely appeal from the
March 28, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on July 9, 2012.
FACTUAL HISTORY
On July 20, 2012 appellant, then a 49-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an injury at work on July 9, 2012. Regarding the nature
of the injury, he stated, “Right foot swollen and aching when I awoke in the morning.”
1

5 U.S.C. §§ 8101-8193.

Regarding the cause of the injury, appellant noted, “Walking on assigned route south and C&D,
felt a little discomfort when leaving work.” He stopped work on July 10, 2012.2
Appellant initially did not submit any medical evidence in support of his claim. In a
July 26, 2012 letter, OWCP advised him of the type of factual and medical evidence needed to
support his claim.
In an undated note, Dr. Mark L. Bauman, an attending podiatrist, stated that appellant had
been under his care for foot care and needed to remain out of work for physical therapy from
July 20 to August 13, 2012.3 In July 13 and 17, 2012 notes, he indicated that appellant was
under his care and should remain out of work until July 23, 2012. In the July 17, 2012 note,
Dr. Bauman stated that appellant was being treated for acute interdigital neuritis.4
In an August 9, 2012 attending physician’s report, Dr. Bauman listed the date of injury as
May 20, 2009 and the injury as “consistent repetitive pain and burning right third web space.”5
He checked a “yes” box indicating that he believed that appellant’s condition was caused or
aggravated by a work activity and noted that his job required “a large amount of walking.” In an
August 10, 2012 form report, Dr. Bauman recommended various work restrictions. He listed the
date of injury as July 9, 2012, the nature of the injury as traumatic neuroma and cause of the
injury as “walking on assigned route.”6
On August 23, 2012 Dr. Bauman further described appellant’s reported walking activity
at work on July 9, 2012 which was followed by swelling in his right foot. He noted that when he
initially saw appellant on July 10, 2012 he had pain in the right third web space “compensating
with pain in the ankle.” Dr. Bauman described his treatment of appellant’s condition and stated,
“I believe he had symptomatic and physical changes in his right foot since his original injury of
May 2009 leading to the ankle arthritic changes and localized tendinitis. Pain in the ball of the
foot was something that was aggravated apparently in July 2012.”
In an August 28, 2012 decision, OWCP denied appellant’s claim that he sustained a
work-related injury on July 9, 2012. It found that he had established a work factor in the form of

2

OWCP had previously accepted that on May 20, 2009 appellant sustained work-related neck and lumbar region
sprains. These issues are not presently before the Board.
3

A report from May 27, 2011 indicated that Dr. Bauman was treating appellant at that time for a suspected
Morton’s neuroma of the third web space of his right foot. Dr. Bauman felt that the events of May 20, 2009
“precipitated” appellant’s right foot problems. In a May 24, 2012 report, he stated, “[Appellant] currently has a
condition known as hallux limitus which is a slightly milder form of hallux rigidus of his right 1st
[metacarpophalangeal] joint. This condition is likely secondary to the injury he incurred to his right foot in May
2009.
4

Appellant submitted other disability slips, but they were not signed by a physician. He also submitted notes
from physical therapists.
5

Dr. Bauman stated that a tow motor hit appellant’s right foot and hip on May 20, 2009.

6

Dr. Bauman noted appellant’s clinical findings as pain in the ball of his right foot.

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walking his route on July 9, 2012, but that he had not submitted sufficient rationalized medical
evidence to establish a specific condition due to this work factor.
Appellant requested a hearing with an OWCP hearing representative. At the
December 27, 2012 hearing, he testified that he noticed severe swelling in his right foot after
walking his route at work on July 9, 2012. Appellant asserted that he had injured his right
elbow, knee and foot at work on May 20, 2009. He did not sustain another foot injury until
July 9, 2012. Appellant’s counsel argued that the reports of Dr. Bauman supported appellant’s
claim for a July 9, 2012 work injury.
In a November 14, 2012 report, Dr. Bauman provided another description of appellant’s
reported walking activity at work on July 9, 2012 which was followed by swelling in his right
foot and described his treatment of appellant’s foot condition. He stated, “I feel absolutely
certainty that the injury and symptomotology that he had on July 09, 2012 was completely
related to the injury that occurred in May 2009 at which he has been working valiantly for over
three years. The type of injury that he had certainly can, and in his case was, exacerbated by the
walking he had to do on the work surfaces that he had to ambulate.” In a November 24, 2012
form report, Dr. Bauman recommended various work restrictions. He listed the date of injury as
July 9, 2012, the clinical findings as pain in the ball of the right foot and the cause of the injury
as “walking on assigned route.”7 Appellant also submitted additional physical therapy reports.
In a March 28, 2013 decision, OWCP’s hearing representative affirmed OWCP’s
August 28, 2012 decision denying appellant’s claim for a July 9, 2012 work injury. She
indicated that Dr. Bauman had not provided medical rationale in support of the opinions
contained in his reports.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 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.8 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
7

The listed diagnosis was illegible.

8

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

9

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44
ECAB 343, 351 (1992).

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There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.10 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.12 Physical therapists are not physicians under FECA and are not
qualified to provide the necessary medical evidence to meet a claimant’s burden of proof regarding
medical matters.13
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained an injury to his right
foot by walking on his assigned route on July 9, 2012. The Board finds that he has established a
work factor in the form of walking his route on July 9, 2012, but that he has not submitted
sufficient rationalized medical evidence to establish that he sustained a specific condition due to
this work factor.
Dr. Bauman described appellant’s reported walking activity at work on July 9, 2012 and
noted that when he initially saw appellant on July 10, 2012 he had pain in the right third web
space “compensating with pain in the ankle.” He stated, “I believe [appellant] had symptomatic
and physical changes in his right foot since his original injury of May 2009 leading to the ankle
arthritic changes and localized tend[i]nitis. Pain in the ball of the foot was something that was
aggravated apparently in July 2012.” Although Dr. Bauman suggested that appellant sustained a
right foot injury on July 9, 2012 due to walking his route on that date, his report is of limited
probative value on the relevant issue of this case because he did not provide medical rationale in
support of his opinion on causal relationship.14 He did not explain how a specific right foot
condition could have been caused by appellant’s act of walking at work on July 9, 2012.

10

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
11

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, supra note 10.

12

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

13

Jane A. White, 34 ECAB 515, 518-19 (1983).

14

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).

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Dr. Bauman seemed to also implicate a May 20, 2009 work incident involving the right foot.
However, OWCP only accepted that incident as causing neck and lumbar region sprains.15
Dr. Bauman’s November 14, 2012 report also described appellant’s reported walking at
work on July 9, 2012 and stated, “I feel absolutely certainty that the injury and symptomotology
that he had on July 09, 2012 was completely related to the injury that occurred in May 2009 [at]
which he has been working valiantly for over three years. The type of injury that [appellant] had
certainly can, and in his case was, exacerbated by the walking he had to do on the work surfaces
that he had to ambulate.” In this report, Dr. Bauman again failed to provide an explanation for
his opinion that appellant sustained a right foot injury on July 9, 2012 due to walking. He
generally noted that walking can cause foot injuries but he did not explain how appellant’s
specific activities caused such injury.
Dr. Bauman provided several disability slips showing disability after July 9, 2012, but
these slips do not contain a rationalized opinion relating a specific condition to the July 9, 2012
work activities. In July 13 and 17, 2012 notes, he indicated that appellant was under his care and
should remain out of work until July 23, 2012. In the July 17, 2012 note, Dr. Bauman stated that
appellant was being treated for acute interdigital neuritis. However, he did not explain the cause
of this condition. In several form reports, Dr. Bauman listed the date of injury as May 20, 2009
or July 9, 2012, diagnosed such conditions as traumatic neuroma and mentioned appellant’s
walking activities on July 9, 2012.16 Although he attributed appellant’s foot condition to the
July 19, 2012 work factor in some of these brief reports, he did not provide any explanation of
why the observed condition was due to the accepted July 9, 2012 factor, i.e., appellant’s walking
his route on that date.17
Before OWCP and on appeal, counsel argued that Dr. Bauman’s report established
appellant’s claim, but these reports did not contain adequate medical rationale for the reasons
described above. 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 did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on July 9, 2012.
15

The Board notes that the medical record does not otherwise show that appellant sustained a foot injury on
May 20, 2009.
16

In an August 9, 2012 attending physician’s report, Dr. Bauman listed the date of injury as May 20, 2009 and
the injury as “consistent repetitive pain and burning right third web space.” He checked a “yes” box indicating that
he believed that appellant’s condition was caused or aggravated by a work activity and noted that his job required “a
large amount of walking.”
17

Appellant also submitted numerous physical therapy reports, but these documents would not constitute
probative medical evidence as physical therapists are not physicians under FECA. See supra note 13. Some of the
medical reports of record suggest that he sustained a foot injury due to walking at work over an extended period, but
it does not appear that he has filed an occupational disease claim.

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ORDER
IT IS HEREBY ORDERED THAT the March 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 08-198
Issued: April 24, 2008

Case Submitted on the Record

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

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated January 10 and May 14, 2007 that terminated her
compensation benefits and a September 6, 2007 decision that denied her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits on January 10, 2007 on the grounds that her disability was no longer
employment related; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 21, 2005 appellant, then a 55-year-old part-time distribution clerk sales
associate, filed a Form CA-2, occupational disease claim, alleging that factors of her federal

employment caused stress. She stopped work on December 24, 2004. In support of her claim,
appellant submitted reports dated March 7 to October 5, 2005 from Dr. Katherine L. Drapeau, a
Board-certified osteopath specializing in family medicine, who noted that appellant had been her
patient since October 2001 and was having trouble with her supervisor at work who was verbally
aggressive and acting in a bizarre manner. This caused anxiety, insomnia, irritability and
depression. Dr. Drapeau advised that appellant could not work for an undetermined period.1
Appellant retired effective October 24, 2005. After an initial decision by the Office denying her
claim on December 19, 2005, by decision dated April 25, 2006, an Office hearing representative
found that appellant established two compensable factors of employment and remanded the case
to the Office.2
On April 28, 2006 the Office referred appellant to Dr. Kenneth D. Krause, a Boardcertified psychiatrist. In a May 25, 2006 report, Dr. Krause noted his review of the statement of
accepted facts, the medical record, and history as presented by appellant. He provided
psychometric testing results and diagnosed anxiety disorder, not otherwise specified, and
dependent traits. Dr. Krause advised that appellant’s anxiety disorder was precipitated and
contributed to by the accepted employment factors but that these could not cause a chronic
condition such as she had. By the time appellant retired, any emotional reaction related to work
events would have ended such that her employment-related condition had resolved. In an
attached work capacity evaluation, Dr. Krause opined that appellant could work only four hours
a day because she was anxious and fearful but that after three months she could work full time.
He advised that she not work at the employing establishment and should avoid conflicts and
could not deal with new tasks or changes.
The Office accepted that appellant sustained a temporary aggravation of generalized
anxiety disorder for the period September 4, 2004 through December 24, 2005. Appellant
received wage-loss compensation for the period September 3 to October 24, 2005. She requested
a review of the written record on July 3, 2006, and by decision dated October 25, 2006, an Office
hearing representative remanded the case to the Office to advise appellant of the defects in her
claim and allow her 30 days to submit supportive evidence.
By letter dated November 29, 2006, the Office proposed to terminate appellant’s
compensation benefits on the grounds that Dr. Krause, who provided a second opinion
evaluation for the Office, advised that her employment-related disability had resolved. The
Office informed appellant that to be entitled to continuing medical and compensation benefits,
the medical evidence must establish that her condition or disability was still related to her
accepted work injury. She was given 30 days to respond. Appellant disagreed with the proposed

1

Appellant also submitted a March 3, 2005 report in which Mara Kormylo, a licensed social worker, noted
treating her with individual psychotherapy for diagnoses of anxiety and panic attacks which, she opined were work
related. The Board notes that the reports of a social worker do not constitute competent medical evidence, as a
social worker is not a “physician” as defined by 5 U.S.C. § 8101(2); see Phillip L. Barnes, 55 ECAB 426 (2004).
2

The following were found to be compensable factors of employment: Following appellant’s inquiry to the
union about breaks, her supervisor questioned her and a coworker as to who made the call and stated “there are evil
forces at work in this office”; and that, when appellant turned in her workers’ compensation claim, her supervisor
commented to a coworker that appellant would not be back to work because she was mentally ill.

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termination, arguing that Dr. Krause’s opinion should not represent the weight of medical
opinion.
In a decision dated January 10, 2007, the Office finalized the proposed termination. On
January 20, 2007 appellant requested a review of the written record. By decision dated May 14,
2007, an Office hearing representative affirmed the January 10, 2007 decision.
On August 25, 2007 appellant requested reconsideration, again alleging that Dr. Krause’s
opinion should not be credited. In a nonmerit decision dated September 6, 2007, the Office
denied her reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.3 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on January 10, 2007. The Office referred appellant to Dr. Krause, Boardcertified in psychiatry, for a second opinion evaluation. In a comprehensive report dated
May 25, 2006, Dr. Krause noted his review of the statement of accepted facts, medical record
and history and diagnosed anxiety disorder which was precipitated and contributed to by the
accepted employment factors. He advised that the accepted factors would not cause a chronic
condition such as appellant had and by the time she retired, any emotional reaction related to
work events would have resolved. Appellant submitted no medical evidence subsequent to
Dr. Krause’s May 25, 2006 report.
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized 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.5 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.6
3

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

4

Id.

5

Jennifer Atkerson, 55 ECAB 317 (2004).

6

Id.

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The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Krause who provided a comprehensive, well-rationalized evaluation in which he clearly
advised that any residuals of appellant’s employment-related emotional condition had resolved.
The Office therefore met its burden of proof to terminate appellant’s wage-loss and medical
benefits on January 10, 2007.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.7 Section 10.608(a) of the Code of Federal Regulations provides that a
timely request for reconsideration may be granted if the Office determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).8 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that the Office
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.9 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.10
ANALYSIS -- ISSUE 2
In her request for reconsideration, appellant merely reiterated that Dr. Krause’s opinion
should not be credited. She therefore did not allege or demonstrate that the Office erroneously
applied or interpreted a specific point of law, or advance a relevant legal argument not previously
considered by the Office. Consequently, appellant is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(2).11
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted no additional evidence. She therefore did not submit relevant and pertinent new
evidence not previously considered by the Office, and the Office properly denied her
reconsideration request by its September 6, 2007 decision.

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.608(a).

9

20 C.F.R. § 10.608(b)(1) and (2).

10

20 C.F.R. § 10.608(b).

11

20 C.F.R. § 10.606(b)(2).

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CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on January 10, 2007 and properly denied appellant’s request for a merit
review pursuant to section 8128(a) of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 6, May 14 and January 10, 2007 be affirmed.
Issued: April 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 17-0038
Issued: June 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from a September 23, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated February 10, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 27, 2013 appellant, then a 40-year-old supervisory border patrol agent, filed
a traumatic injury claim (Form CA-1) alleging that he sustained a left eye injury when a tree
branch struck him when tracking through a wooded area. OWCP accepted appellant’s condition
for superficial injury of the left cornea and central opacity of the left cornea. Appellant did not
stop work.
On August 7, 2013 Dr. John D. Goosey, a Board-certified ophthalmologist, performed a
lamellar keratoplasty of the left eye and diagnosed central corneal scar of the left eye.
On November 13, 2014 appellant filed a claim for a schedule award (Form CA-7).
On February 24, 2015 OWCP referred appellant for a second opinion to Dr. Thomas P.
Dowhan, a Board-certified ophthalmologist, for a determination of whether appellant had
permanent impairment attributable to his accepted conditions. In a report dated April 20, 2015,
Dr. Dowhan noted a history of appellant’s work-related incident and subsequent treatment. He
indicated that appellant was struck in the left eye by a tree branch while working. Dr. Dowhan
noted that the injury left appellant with a superficial scar causing visual impairment. He advised
that appellant underwent lamellar keratoplasty to correct the condition and restore vision.
Appellant reported a significant decrease in vision in the left eye and photophobia on days when
the sun was bright. Dr. Dowhan indicated that maximum medical improvement was reached on
August 7, 2013. He noted that following surgery, appellant showed signs of graft rejection, but
after medical management his condition has stabilized. Dr. Dowhan diagnosed corneal scar and
central opacities. He opined that, pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 Table 12-2
and 12-3, Impairment of Visual Acuity, appellant had 75 percent permanent impairment of the
left eye.
In a September 30, 2015 report, an OWCP medical adviser indicated that Dr. Dowhan
failed to provide letter chart acuity for binocular vision. He requested that Dr. Dowhan provide a
visual acuity score so that an acuity-related impairment rating could be accurately determined.
On October 5, 2015 OWCP requested Dr. Dowhan provide a visual acuity score for both
eyes. On November 19, 2015 Dr. Dowhan opined that, pursuant to the A.M.A., Guides, Table
12-2 and 12-3, the functional acuity score was 85. He diagnosed visual loss of left eye due to
corneal opacity. Dr. Dowhan calculated 15 percent visual permanent impairment. In a
January 18, 2016 report, the medical adviser agreed with Dr. Dowhan’s impairment rating
determination of 15 percent permanent impairment of the left eye.
3

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

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In a decision dated February 10, 2016, OWCP granted appellant a schedule award for 15
percent permanent impairment of the left eye. The period of the award ran from May 2 to
October 16, 2014.
On August 9, 2016 appellant, through counsel, requested reconsideration. He submitted a
new report from Dr. Ronald H. Krasney, a Board-certified ophthalmologist, and asserted that,
based on this new evidence, OWCP’s decision should be vacated and the previous decision
overturned. In his July 5, 2016 report, Dr. Krasney noted a history of appellant’s injury and
medical treatment. He noted that appellant experienced a difficult postoperative course with
early signs of graft rejection which explained his persistent photophobic symptoms and persistent
corneal opacities. Dr. Krasney referenced OWCP’s medical adviser’s note which considered
impairment based on visual acuity in both eyes. However, he advised that this method did not
truly consider the impairment in the left eye which includes loss of stereopsis. Dr. Krasney
indicated that his “own personal comment on this matter is how anyone would feel if they had
two of something and now only had one that is functioning.” He further noted that “to most
anyone, this would be at least 50 percent loss and if it were one’s own personal situation this loss
might be considered even more severe.”
Appellant also submitted a March 9, 2016 report from Dr. Dowhan who treated him for
left eye pain, sticky left eye, and headaches from blurred vision which was worse over the last
week. Dr. Dowhan diagnosed pain in the left eye, foreign body in cornea of left eye, blurred
vision, history of cornea transplant, history of photophobia of the left eye, and cornea edema. He
noted removing the exposed part of a suture.
In a September 23, 2016 decision, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or his written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by the
(Office); or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.6
ANALYSIS
By decision dated February 10, 2016, OWCP granted appellant’s claim for a schedule
award for 15 percent permanent impairment of the left eye. In a September 23, 2016 decision,
OWCP denied appellant’s reconsideration request, without conducting a merit review, finding
that the evidence submitted was insufficient to warrant review of the prior decision as it neither
raised substantive legal questions, nor included new and relevant evidence.
However, with his August 9, 2016 reconsideration request, appellant submitted relevant
and pertinent evidence not previously considered by OWCP.
With his request for
reconsideration, appellant submitted a report from Dr. Krasney, a Board-certified
ophthalmologist, dated July 5, 2016, who noted that appellant experienced a difficult
postoperative course with early signs of graft rejection which explained his persistent
photophobic symptoms and persistent corneal opacities. Dr. Krasney referenced OWCP’s
medical adviser’s note which considered impairment based on visual acuity in both eyes, but
advised that this method did not truly consider the impairment in the left eye which included loss
of stereopsis. He indicated that his “own personal comment on this matter is how anyone would
feel if they had two of something and now only had one that is functioning.” Dr. Krasney further
noted that “to most anyone, this would be at least 50 percent loss and if it were one’s own
personal situation this loss might be considered even more severe.” This particular medical
evidence is relevant as it addressed permanent impairment of appellant’s left eye. Specifically,
Dr. Krasney referenced OWCP’s medical adviser’s note which considered impairment based on
visual acuity in both eyes, but not impairment in the left eye which includes loss of stereopsis.
While this evidence may be of limited probative value as to the extent of permanent impairment,
the Board has held that the requirement for reopening a claim for merit review does not include
the requirement that a claimant must submit all evidence which may be necessary to discharge
his or her burden of proof. Instead, the requirement pertaining to the submission of evidence in
support of reconsideration only specifies that the evidence be relevant and pertinent and not
previously considered by OWCP.7
The Board finds that, in accordance with 20 C.F.R. § 10.606(b)(3)(iii), the new report
from Dr. Krasney is sufficient to require reopening appellant’s case for further review on its
merits. The case shall be remanded for OWCP to reopen appellant’s claim for a merit review.
Following this and such other development as deemed necessary, OWCP shall issue an
appropriate merit decision on the appellant’s claim.

6

Id. at § 10.608(b).

7

See Helen E. Tschantz, 39 ECAB 1382 (1988).

4

CONCLUSION
The Board finds that OWCP, in its decision dated September 23, 2016, improperly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
development in accordance with this decision.
Issued: June 8, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF PRINTING & ENGRAVING,
Fort Worth, TX, Employer
__________________________________________

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Appearances:
Ditty S. Bhatti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-749
Issued: October 21, 2014

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 February 18, 2014 appellant, through his attorney, filed a timely appeal from the
August 23, 2013 merit decision of the Office of Workers’ Compensation Programs’ (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to factors of his federal employment.
FACTUAL HISTORY
On December 19, 2011 appellant, then a 68-year-old plate printer, filed an occupational
disease claim alleging that he sustained carpal tunnel syndrome in both hands and wrists in the
1

5 U.S.C. § 8101 et seq.

performance of duty. He noted that he worked for 21 years with the employing establishment as
a plate printer operator. Appellant alleged that his injury began on December 1, 2011 and that he
first became aware of the injury and its relation to his work on that date. He did not stop work.
The employing establishment noted that appellant had been working since 1990 and the duties
included: setup; monitoring the operation of the printing press and making adjustments as
needed; print quality; taking corrective action; preparing reports and using the hands and wrists
intermittently to keep the presses running smoothly.
By letters dated December 22, 2011, OWCP advised appellant and the employing
establishment that additional factual and medical evidence was needed.
A November 29, 2011 electromyography (EMG) scan read by Dr. Jiangping Liu, a
Board-certified neurologist, revealed an abnormal EMG scan and nerve conduction study. He
indicated that the study revealed bilateral upper extremity carpal tunnel syndrome to a mild
degree. Also submitted was a December 19, 2011 employing establishment treatment record
from a provider with an illegible signature.
In a December 12, 2011 statement, appellant related that he had worked as a plate printer
for 21 years. He noted that the presses were continually printing for 24 hours a day, five to
seven days a week. Appellant indicated that during that time he was making adjustments to
impression and plate mechanisms as well as wiping and polishing ink fountains, feeders and
delivery devices, etc. He explained that the work required frequent standing, walking, bending,
crouching, stooping, reaching and lifting objects weighing up to 75 pounds. Additionally,
appellant was required to have physical contact with grease, oil, solvents and printing ink and
exposure to the possibility of scrapes, falls, strains, burns, electric shock, cut bruises, as well as
danger from moving machinery. In a December 14, 2011 statement, Tim Moloney, the plate
printing supervisor, indicated that appellant’s daily job duties were consistent with appellant’s
statement.
In a December 21, 2011 statement, Anthony Maniaci, the supervisor of plate printing
operations, controverted the claim. He noted that there was no medical evidence with objective
rationale to support causal relationship.
In a December 23, 2011 report, Dr. Faye David, an internist, noted that appellant had
bilateral carpal tunnel syndrome per Dr. Liu’s testing on November 29, 2011.
On December 30, 2011 appellant advised OWCP that he had submitted the requested
documentation. In an undated response received by OWCP on January 10, 2012 he again
described his employment duties and activities. Appellant noted that he did not have any
hobbies, physical fitness or other activities outside work that could have caused this condition.
He indicated that he had also requested a report from his physician.
By decision dated January 31, 2012, OWCP denied appellant’s claim. It found that the
medical evidence did not contain a clear and definite explanation from his physician to connect
the medical condition to the work activities.
In a letter dated June 6, 2012, appellant’s attorney, contacted OWCP to note her
representation and to advise that she would seek reconsideration. In a December 1, 2012 letter,
2

counsel noted that she had been retained to represent appellant in the “reconsideration” appeal.
By letter dated January 14, 2013, appellant confirmed that he had retained counsel to represent
him in his “reconsideration appeal.”
In letters dated January 14 and 27, 2013, appellant’s counsel provided additional
information. She argued that appellant was employed for 21 years as a plate printer with the
employing establishment. Counsel argued that he had presented sufficient evidence to meet the
criteria to establish his claim for an injury in the course of his federal employment. OWCP
received copies of previously submitted reports.
In a decision dated February 21, 2013, OWCP found that the reconsideration request was
untimely filed and failed to present clear evidence of error. On August 12, 2013 the Board
issued an order remanding case.2 The Board found that the January 14, 2013 request was a
timely request for reconsideration. The Board found that the February 21, 2013 decision should
be set aside and the case remanded for an appropriate decision.
In an August 23, 2013 decision, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.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 employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized 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
2

Docket No. 13-952 (issued August 12, 2013).

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

3

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.6
ANALYSIS
The evidence establishes that appellant has bilateral carpal tunnel syndrome and was
involved in repetitive and other activities at work. However, he submitted insufficient medical
evidence to establish that his bilateral hand and wrist condition was caused or aggravated by
these activities or any other specific factors of his federal employment.
The December 23, 2011 report from Dr. David did not offer any opinion on causal
relationship. For example, he did not address whether appellant’s work duties contributed to his
diagnosed condition.7 A November 29, 2011 EMG scan read by Dr. Liu revealed bilateral upper
extremity carpal tunnel syndrome. However, this report merely reported findings and did not
contain an opinion regarding the cause of the reported condition. The medical evidence is
insufficient to establish that the diagnosed condition is due to particular factors of employment.
Also of record is a December 19, 2011 employing establishment treatment record from a
provider with an illegible signature. The Board has held that a medical report may not be
considered as probative medical evidence if there is no indication that the person completing the
report qualifies as a physician as defined in 5 U.S.C. § 8101(2). Reports lacking proper
identification do not constitute probative medical evidence.8
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated his bilateral carpal tunnel syndrome, he has not met his burden of proof to
establish a medical condition causally related to factors of his employment.
On appeal, appellant’s counsel argued that appellant’s carpal tunnel syndrome was
caused by his employment and the medical evidence contained the requisite rationale to support
causal relationship. However, as found above, the medical evidence does not support causal
relationship. Counsel also argued that appellant had not suffered any injury to his hands, wrists
or forearms prior to his carpal tunnel diagnosis. The Board has found that because an employee
is asymptomatic before an employment injury is insufficient without supporting medical
rationale to establish causal relationship.9 Causal relationship must be substantiated by reasoned
medical opinion evidence, which is appellant’s responsibility to submit.

6

Id.

7

See Michael E. Smith, 50 ECAB 313 (1999) (medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).
8

C.B., Docket No. 09-2027 (issued May 12, 2010).

9

See Thomas Petrylak, 39 ECAB 276 (1987).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof that he sustained an injury
in the performance of duty causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2014
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Valrico, FL, Employer
__________________________________________

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

Docket No. 10-1970
Issued: August 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 July 27, 2010 appellant filed a timely appeal from a July 15, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating benefits. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on July 15, 2010.
FACTUAL HISTORY
Appellant, a 44-year-old rural carrier, injured her right foot on August 31, 2006 when she
tripped while entering her mail vehicle. She filed a claim for benefits on September 8, 2006,
which OWCP accepted for right foot sprain. This claim was assigned case file number
1

5 U.S.C. § 8101 et seq.

xxxxxx919. Appellant was off work from November 20, 2006 to January 16, 2007 due to a
nonwork-related abdominal condition; she underwent abdominal surgery on December 2, 2006.
On January 17, 2007 she was released to light duty.2
In January 2007 the employing establishment asked appellant’s treating physician,
Dr. Steven Baker, a podiatrist, to conduct an examination and complete a Form CA-17, fitnessfor-duty form, indicating whether she still had work restrictions stemming from her accepted
right foot condition. The employing establishment inquired as to whether appellant was able to
drive and the length of time required for a foot injury to heal. Dr. Baker examined appellant and
completed the form on January 22, 2007. He stated that a foot injury as appellant had sustained,
could take months to heal and checked a box indicating that appellant was not able to perform
her regular duties. Dr. Baker subsequently faxed a copy of an amended Form CA-17 dated
January 27, 2007, which contained a handwritten annotation stating, “OK to resume all duties.”
He checked a box indicating that appellant was able to resume work on January 24, 2007. Based
on this amended Form CA-17, the employer determined that appellant could work her regular
route as a driver on January 25, 2007. Appellant, however, claimed that she reinjured her foot on
January 25, 2007. On February 15, 2007 she subsequently filed a Form CA-7 claim for wage-loss
compensation from January 26 to February 20, 2007.
On February 20, 2007 the employing establishment controverted appellant’s claim, noting
that Dr. Baker’s January 22, 2007 report released her to resume all work duties as of
January 24, 2007. It noted that appellant did not submit any additional medical evidence to
substantiate that she had sustained a new work-related injury on January 25, 2007.
In a report dated March 20, 2007, Dr. G.E. Vega, a Board-certified orthopedic surgeon,
noted that appellant had sustained a right foot injury on August 31, 2006. He advised that she
continued working after reporting the accident to her supervisor and did not consult a physician
until the middle of September 2006, when she sought treatment at the employing establishment
clinic. Dr. Vega stated that appellant was placed on temporary partial disability and eventually
released to return to full duty on January 25, 2007. Appellant stated that day that she
experienced recurrent pain of the right foot, without any recurrent trauma. Dr. Vega advised that
she had not returned to work since January 25, 2007.
Dr. Vega stated that appellant had complaints of pain even while lying in bed. On
examination, appellant had an active, full range of motion in her right foot with no swelling, no
edema and no localized tenderness; the subtalar joint and mid-tarsal joints were quite supple.
Dr. Vega noted that appellant had a mild hallux valgus which was not painful. Appellant
underwent a magnetic resonance imaging (MRI) scan on February 9, 2007 which showed mild
degenerative changes with no significant ankle or foot pathology. Dr. Vega administered x-ray
studies which were essentially normal, aside from showing a mild hallux valgus. He diagnosed a
right foot plantar fascia sprain, fully resolved. Dr. Vega found that appellant was able to return
to work on full duty with a zero disability rating.

2

The facts pertaining to appellant’s right foot injury, her physical restrictions and her work schedule from
October 2006 through February 2007 were set forth in a separate Board decision, Docket No. 09-1844 (June 17,
2010), OWCP file number xxxxxx438. This decision adjudicated appellant’s claim for an emotional condition.

2

By letter dated January 23, 2009, OWCP asked Dr. Baker to submit a detailed, updated
report indicating any current diagnosed conditions, whether her accepted foot sprain was still
medically present and disabling, or whether it had totally resolved. It also asked him to indicate
the specific work restrictions due to the accepted right foot injury, if any, during the period of
January 17 to 24, 2007, and whether she able to perform all work duties effective January 25,
2007 or whether work restrictions continued.
In a February 6, 2009 report, Dr. Baker stated that, as of his most recent examination of
appellant on February 2, 2009, she continued to complain of right foot pain. He advised that she
was unable to work or walk or stand for long periods. On examination, appellant’s
neurovascular status was intact although she had pain throughout the right mid-foot area.
Dr. Baker noted that previously obtained imaging films showed mild degenerative changes
throughout the mid foot which could also account for her symptoms. Appellant related that,
although orthotics helped her somewhat, she was still unable to do any long periods of walking
or standing without pain. Dr. Baker advised her to work and find a job where she could be
seated part of the day and stand only part of the day given the findings of mid-foot degenerative
changes or arthritis.
Dr. Baker noted that there was some confusion regarding the period following
January 25, 2007. He stated that appellant was not able to perform her regular work schedule at
that time but he inadvertently failed to complete the remainder of the form. Dr. Baker advised
that appellant was not able to work at that time and apologized for any confusion.
In a July 15, 2010 decision, OWCP terminated appellant’s compensation benefits. It
found that Dr. Vega’s March 20, 2007 opinion that appellant’s accepted right foot sprain had
resolved represented the weight of the medical evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 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.4
ANALYSIS
OWCP based its decision to terminate appellant’s compensation on the opinion of
Dr. Vega. In a March 20, 2007 report, Dr. Vega noted that, although appellant had experienced
recurrent pain from her accepted right foot condition, after returning to work on January 25,
2007, her pain apparently resolved without any recurrent trauma. Based on his examination, an
MRI scan and x-ray studies, her right foot was essentially normal and the accepted right foot
3

John D. Jackson, 55 ECAB 465 (2004); James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr.,
44 ECAB 157 (1992).
4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

sprain had fully resolved. Dr. Vega released her to return to full duty with a zero percent
disability rating. His opinion that appellant’s accepted condition had resolved was based upon
an accurate medical history and objective medical findings.
Dr. Baker noted ongoing complaints of right foot pain on examination in February 6,
2009 report. He opined that appellant was unable to work or walk or stand for long periods. The
Board finds Dr. Baker’s opinion is of limited probative value as he did not provide adequate
medical rationale in support of his conclusions.5 He noted that appellant was not able to work as
of January 25, 2007 and apologized for any “confusion” caused by the contradictory findings he
presented in the reports he submitted at that time. This statement, however, does not adequately
clarify the January 27, 2007 form report on which Dr. Baker wrote “OK to resume all duties,” and
checked a box indicating that appellant was able to resume work on January 24, 2007. Dr. Baker’s
2009 opinion, offered two years after the contemporaneous report of limited probative value. The
opinion he provided regarding appellant’s disability are generalized in nature and equivocal.6
The Board also notes that while in a February 6, 2009 report Dr. Baker diagnosed mild
degenerative changes in appellant’s right foot, he offered no medical explanation of how this
diagnosis related to the accepted condition of right foot strain, which appellant sustained on
August 31, 2006.
The Board finds that Dr. Vega’s opinion represents the weight of the medical evidence.
It negates a causal relationship between appellant’s current condition and her accepted right foot
strain. Dr. Vega’s report is sufficiently probative, rationalized and based upon a proper factual
background and is based upon the x-ray and MRI scan findings of record. OWCP therefore
properly relied on his opinion in its July 15, 2010 termination decision.
CONCLUSION
Under the circumstances described above, the Board finds that OWCP met its burden of
proof to terminate appellant’s compensation benefits.

5

William C. Thomas, 45 ECAB 591 (1994).

6

As indicated above, the evidence regarding appellant’s right foot injury, her work schedule and physical
restrictions stemming from the injury, including Dr. Baker’s reports, was discussed at greater length in the Board’s
June 17, 2010 decision. The Board found in that decision that Dr. Baker released appellant to full duty on
January 24, 2007 and that she was not required to work beyond her physical limitations at that time.

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Floral Park, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0011
Issued: April 20, 2021

Case Submitted on the Record

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

JURISDICTION
On October 4, 2020 appellant, through counsel, filed a timely appeal from a June 4, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted July 2, 2018 employment incident.
FACTUAL HISTORY
On July 2, 2018 appellant, then a 57-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date his left knee gave out while walking in the performance of
duty. He stopped work on the date of injury. In an accompanying statement, appellant noted that
he was walking on his route at the time of injury.
In hospital emergency department report and discharge instructions, Dr. Diana M. Valcich,
a physician Board-certified in emergency and sports medicine, indicated that appellant was
evaluated on July 2, 2018. The discharge diagnosis was knee sprain.
In a July 2, 2018 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care. In Part B of the Form CA-16,
an undated attending physician’s report, Dr. Robert Garroway, an attending Board-certified
orthopedic surgeon, indicated that appellant was evaluated on July 6, 2018. He noted a history
that appellant twisted his left knee and experienced pain. Dr. Garroway diagnosed sprain and
osteoarthritis of the left knee.
OWCP subsequently received additional medical evidence from Dr. Garroway. In a July 6,
2018 duty status report (Form CA-17) and a narrative report of even date, Dr. Garroway reiterated
appellant’s history of injury. He diagnosed acute pain of the left knee, sprain of the left knee,
unspecified ligament, initial encounter, and post-traumatic osteoarthritis of the right and left knees.
Dr. Garroway performed a large joint injection in appellant’s left knee. In the July 6, 2018 Form
CA-17 report, he indicated that appellant’s left knee sprain was due to his knee buckling while
walking on July 2, 2018. Dr. Garroway advised that he was unable to work before
August 10, 2018.
In prescriptions dated July 2 and 6, 2018, Dr. Garroway ordered a hinged knee brace and
referred appellant to physical therapy to treat his left knee sprain/strain.
OWCP, in a July 20, 2018 development letter, informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence necessary to establish his claim,
including a narrative medical report from his physician, which provided a diagnosis and the
physician’s rationalized medical explanation as to how the alleged employment incident caused or
aggravated the diagnosed condition. OWCP afforded appellant 30 days to respond.
In additional narrative reports and Form CA-17 reports dated July 23 and August 7, 2018,
Dr. Garroway reexamined appellant and reiterated his prior assessments of post-traumatic
osteoarthritis of the right and left knees, acute pain of the left knee, and sprain of the left knee,
unspecified ligament, initial encounter. He also noted an assessment of complex tear of the medial
meniscus of the right knee, current injury, initial encounter. In the July 23 and August 7, 2018
Form CA-17 reports, Dr. Garroway reiterated his prior opinion that appellant’s left knee sprain

2

was due to his knee buckling while walking on July 2, 2018 and that he was unable to work. He
also listed work restrictions.
Dr. Garroway, in a July 23, 2018 prescription, ordered a magnetic resonance imaging
(MRI) scan of appellant’s left knee.
In an August 2, 2018 left knee MRI scan report, Dr. Steve Sharon, a Board-certified
diagnostic radiologist, provided an impression of complex medial meniscal tearing with mild
surrounding synovitis. He also provided an impression of mild medial and patellofemoral
compartment arthrosis with mild effusion, synovitis, and a small popliteal cyst.
OWCP, by decision dated September 7, 2018, denied appellant’s traumatic injury claim,
finding that the medical evidence of record failed to establish that his diagnosed conditions were
causally related to the accepted July 2, 2018 employment incident.
In a September 6, 2018 report, Dr. Alpesh Shah, a Board-certified orthopedic surgeon,
noted a history of the accepted July 2, 2018 employment incident, discussed examination findings,
and reviewed diagnostic test results. He provided assessments of complex tear of the medial
meniscus, current injury, right knee, subsequent encounter, and primary osteoarthritis of the left
knee.
In an additional report dated September 17, 2018, Dr. Garroway continued to reiterate his
prior bilateral knee assessments.
On October 15, 2018 appellant requested reconsideration of the September 7, 2018
decision. He submitted a July 2, 2018 left knee x-ray report by Dr. Jorge Tirado, a diagnostic
radiologist. Dr. Tirado reported an impression of mild soft tissue swelling without underlying
fracture.
On December 10, 2018 Dr. Garroway reported an assessment of sprain of the left knee,
unspecified ligament, subsequent encounter.
In a December 21, 2018 decision, OWCP denied modification of its September 7, 2018
decision.
On January 17, 2019 appellant again requested reconsideration of the September 7, 2018
decision.
In narrative reports dated January 7, February 7, March 11, April 9, and May 6 and 9, 2019,
and a Form CA-17 report dated May 6, 2019, Dr. Garroway reiterated his prior bilateral knee
diagnoses. In the May 6, 2019 Form CA-17 report, he attributed appellant’s left knee osteoarthritis
to his knee buckling while walking on July 2, 2018. Dr. Garroway released him to perform limitedduty work with restrictions.
In an April 12, 2019 progress report, Dr. Garroway reiterated his diagnoses of unilateral
post-traumatic osteoarthritis, complex tear of the medial meniscus, and pain of the left knee. He
checked boxes marked “Yes” to indicate his opinion that the employment incident was the cause
of appellant’s injury/illness, his complaints were consistent with his history injury/illness, and his

3

history of injury/illness was consistent with his objective findings. Dr. Garroway noted that
appellant was working with restrictions.
In a July 6, 2018 order, Dr. Garroway again referred appellant to physical therapy to treat
his left knee sprain/strain.
By decision dated June 14, 2019, OWCP again denied modification.
In reports dated June 27, August 5, September 16, October 7, and November 14, 2019,
Dr. Garroway restated his prior left knee assessments.
On March 16, 2020 appellant, through counsel, requested reconsideration of the June 14,
2019 decision and submitted additional reports from Dr. Garroway.
In a December 30, 2019 report, Dr. Garroway noted that appellant was first seen on July 6,
2018 for an injury he sustained at work on July 2, 2018. He diagnosed: left knee sprain; acute
pain, left knee; post-traumatic osteoarthritis bilateral knees; and complex tear of the medial
meniscus. Dr. Garroway noted that the long-term activity of prolonged walking required by his
job duties likely contributed to arthritic changes in the left knee joint. He opined that appellant’s
left knee condition was causally related to the July 2, 2018 employment incident as the buckling
of the knee from walking on stairs resulted in a meniscal tear and worsening of left knee arthritis
and was permanent in nature, resulting in the need for a left knee total arthroplasty.
In a March 4, 2020 report and an undated partial report, Dr. Garroway advised that the
July 2, 2018 employment incident caused a permanent worsening of appellant’s left knee
osteoarthritis for which left total knee arthroplasty was indicated. He further advised that his right
knee had also worsened due to strain from his left knee injury.
In an additional March 24, 2020 progress report, Dr. Garroway continued to diagnose
unilateral post-traumatic osteoarthritis and complex tear of medial meniscus of the left knee. He
again checked boxes marked “Yes” to indicate his opinion that, among other things, the July 2,
2018 employment incident caused appellant’s injury/illness. Additionally, Dr. Garroway again
noted that appellant was working with restrictions.
By decision dated June 4, 2020 decision, OWCP denied modification of its June 14, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
3

Id.

4
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

4

any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted July 2, 2018 employment incident.
In a December 30, 2019 report, Dr. Garroway opined that appellant’s left knee conditions
were causally related to the July 2, 2018 employment incident as the buckling of the knee from
walking on stairs resulted in a meniscal tear and worsening of left knee arthritis and was permanent
in nature, resulting in the need for a left knee total arthroplasty. However, he did not describe
appellant’s July 2, 2018 employment incident in detail or explain the pathophysiological process
through which it could have caused appellant’s claimed left knee conditions.10 The Board has held
that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

A.M., Docket No. 19-1394 (issued February 23, 2021).

5

medical rationale explaining how an employment activity could have caused or aggravated a
medical condition.11 This report is therefore insufficient to establish the claim.12
In a March 4, 2020 report and an undated partial report, Dr. Garroway opined that the
July 2, 2018 employment incident caused a permanent worsening of appellant’s left knee
osteoarthritis for which left total knee arthroplasty was indicated. He also opined that his left knee
injury worsened his right knee. Dr. Garroway, however, did not provide medical rationale
explaining how bilateral knee conditions and need for surgery were caused by the July 2, 2018
employment incident. Likewise, in Form CA-17 reports dated July 6 and 23, and August 7, 2018
and May 6, 2019, Dr. Garroway failed to offer medical rationale in support of his opinion that
appellant’s left knee sprain and osteoarthritis were due to the work-related incident. Further, he
did not offer an opinion as to whether appellant’s disability from work and work restrictions were
due to the accepted work incident. The Board has held that medical evidence which does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.13
In progress reports dated April 12, 2019 and March 24, 2020, Dr. Garroway diagnosed
unilateral post-traumatic osteoarthritis, complex tear of the medial meniscus, and pain of the left
knee. He checked the box marked “Yes” indicating that the July 2, 2018 employment incident
was the cause of appellant’s injury or illness. However, the Board has held that an opinion on
causal relationship with an affirmative check mark, without more, by way of medical rationale, is
insufficient to establish the claim.14 Dr. Garroway’s remaining reports again diagnosed bilateral
knee conditions and addressed appellant’s disability from work, work restrictions, and medical
treatment, but failed to provide an opinion concluding that the July 2, 2018 employment incident
caused or aggravated appellant’s diagnosed bilateral knee conditions, disability, work restrictions,
and medical treatment. As noted, the Board has held that medical evidence which does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.15 For the reasons stated above, the Board finds that these reports are of limited
probative value and insufficient to establish that appellant sustained an employment-related injury.
Dr. Valcich’s July 2, 2018 report and discharge instructions provided a diagnosis of knee
sprain. In a September 6, 2018 report, Dr. Shah provided assessments of complex tear of the
medial meniscus, current injury, right knee, subsequent encounter, and primary osteoarthritis of
the left knee. However, neither physician offered an opinion on the causal relationship between
the diagnosed conditions and the July 2, 2018 employment incident. As noted, the Board has held
11

See V.D., Docket No. 20-0884 (issued February 12, 2021); Y.D., Docket No. 16-1896 (issued February 10, 2017).

12

To the extent that appellant is alleging an injury occurring over more than one workday or work shift, he may
file an occupational disease claim (Form CA-2).
13

See C.W., Docket No. 20-0965 (issued February 5, 2021); B.H., Docket No. 20-0777 (issued October 21, 2020);
T.H., Docket No. 18-1736 (issued March 13, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket
No. 17-1549 (issued July 6, 2018).
14

D.M., Docket No. 20-1277 (issued February 8, 2021); C.S., Docket No. 18-1633 (issued December 30, 2019);
D.S., Docket No. 17-1566 (issued December 31, 2018); B.L., Docket No. 17-0227 (issued July 23, 2018).
15

Id.

6

that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.16 These reports from
Dr. Valcich and Dr. Shah are therefore insufficient to establish appellant’s claim.
The diagnostic reports from Dr. Sharon and Dr. Tirado addressed appellant’s left knee
conditions. However, diagnostic studies, standing alone, lack probative value as to the issue of
causal relationship as they do not address whether the employment incident caused the diagnosed
condition.17
As there is no rationalized medical opinion establishing appellant’s claim for compensation
the Board finds that he has not met his burden of proof to establish his claim.18
On appeal counsel contends that the factual and medical evidence of record is sufficient to
establish that appellant sustained a compensable injury causally related to the accepted July 2,
2018 employment incident. As explained above, the Board finds that the medical evidence of
record is insufficient to establish causal relationship between the accepted July 2, 2018
employment incident and the diagnosed conditions.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted July 2, 2018 employment incident.19

16

Id.

17

See B.H., Docket No. 20-0777 (issued October 21, 2020); M.L., Docket No. 18-0153 (issued January 22, 2020);
J.S., Docket No. 17-1039 (issued October 6, 2017).
18

T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
19

The Board notes that the employing establishment issued a Form CA-16. A properly executed Form CA-16
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. The period for which treatment
is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.
20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket No. 17-1655 (issued
January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, COAL
DISTRICT 11, Birmingham, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-2006
Issued: August 19, 2019

Case Submitted on the Record

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

JURISDICTION
On September 27, 2017 appellant filed a timely appeal from a September 12, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 23 percent binaural hearing loss for which
he previously received a schedule award.
FACTUAL HISTORY
On September 12, 2016 appellant, then a 66-year-old special investigator mine inspector,
filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to
1

5 U.S.C. § 8101 et seq.

exposure to loud noises while inspecting mining operations while in the performance of duty.
He indicated that he first became aware of his condition on September 1, 2000 and attributed it to
his federal employment on that date.2
In support of this claim, appellant submitted an employing establishment July 23, 2014
noise exposure summary indicated five- to six-hour daily exposure to noise from mining
machinery and other equipment that used auxiliary fans for face ventilation. The record also
contains a January 8, 2015 statement of accepted facts (SOAF) which listed his noise exposure.
On February 7, 2017 OWCP referred appellant, together with the SOAF to Dr. Jack W.
Aland, a Board-certified otolaryngologist, for an otologic examination and an audiological
evaluation. In a March 7, 2017 report, Dr. Aland reviewed the SOAF and found that appellant’s
employment-related noise exposure was sufficient to have caused his hearing loss. He diagnosed
bilateral sensorineural hearing loss. Dr. Aland opined that this hearing loss was due to noise
exposure encountered during appellant’s federal employment. He opined that long-term noise
exposure resulted in significant worsening of appellant’s hearing. Audiometric testing was
performed for Dr. Aland on March 7, 2017. Testing at the frequencies of 500, 1,000, 2,000, and
3,000 hertz (HZ) revealed the following: right ear 25, 25, 45, and 65 decibels (dBs); left ear 25,
25, 45, and 65 dBs.
By decision dated March 21, 2017, OWCP accepted appellant’s claim for binaural
sensorineural hearing loss due to noise exposure.
On March 27, 2017 an OWCP medical adviser reviewed Dr. Aland’s report and the
audiometric test of March 7, 2017. He concluded that, in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment3 (A.M.A.,
Guides), appellant had 22.5 percent monaural hearing loss in each ear and 22.5 percent binaural
hearing loss. The medical adviser recommended hearing aids.
On March 28, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a decision dated September 12, 2017, OWCP denied appellant’s additional schedule
award claim, finding that he had not established greater hearing impairment than that previously
awarded under OWCP File No. xxxxxx005.

2

The present claim was assigned OWCP File No. xxxxxx320. Appellant has a prior claim under OWCP File No.
xxxxxx005, which OWCP accepted for hearing loss due to exposure to loud machinery while in the performance of
duty as a coal mine safety and health inspector as of August 21, 2001. By decision dated April 8, 2008, OWCP
issued appellant a schedule award for 23 percent binaural hearing loss. Appellant also has a prior claim under
OWCP File No. xxxxxx319, which OWCP accepted for hearing loss due to exposure to loud noise as a special
investigator as of July 2014. Appellant noted on the claim forms for OWCP File No. xxxxxx320 and xxxxxx319
that they were additional claims for hearing loss as he had experienced another hearing threshold shift. OWCP has
not administratively combined appellant’s three hearing loss claims.
3

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

2

LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 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, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged.8 Then, the “fence” of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.9 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.10 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.11 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.12 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id. See also M.A., Docket No. 17-1490 (issued November 14, 2017); Jacqueline S. Harris, 54 ECAB
139 (2002).
7

Supra note 2 at 250 (6th ed. 2009).

8

Id.

9

Id.

10

Id.

11

Id.

12

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

M.W., Docket No. 16-1777 (issued July 20, 2017); Robert E. Cullison, 55 ECAB 570 (2004).

3

providing rationale for the percentage of impairment specified.14 It may follow the advice of its
medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.15
ANALYSIS
The Board finds that appellant has no more than 23 percent binaural hearing loss for
which he previously received a schedule award.
OWCP accepted that appellant sustained binaural hearing loss due to noise exposure from
his federal employment. The issue is whether he has proven entitlement to an additional
schedule award by establishing that he sustained more than 23 percent binaural loss of hearing
for which he has already received a schedule award. The Board finds that the evidence of record
does not establish that appellant has more than 23 percent binaural loss of hearing. The March 7,
2017 audiogram results did not demonstrate more than 23 percent binaural loss of hearing in
accordance with the sixth edition of the A.M.A., Guides.
OWCP properly referred appellant to Dr. Aland for an examination relative to his
claimed hearing loss. Dr. Aland’s March 20, 2017 examination found that appellant’s binaural
sensorineural hearing loss was due to his workplace noise exposure. On March 21, 2017 an
OWCP’s medical adviser reviewed Dr. Aland’s report and found that the binaural hearing loss
was 22.5 percent for schedule award purposes. He applied the standardized procedures to the
March 7, 2017 audiogram performed for Dr. Aland to determine whether appellant’s binaural
hearing loss warranted an additional schedule award over the 23 percent schedule award he
previously received.
Appellant’s testing for the right ear at the frequency levels of 500, 1,000, 2,000, and
3,000 Hz revealed dB losses of 25, 25, 45, and 65, respectively. These dBs were totaled at 160
and were divided by 4 to obtain an average hearing loss at those cycles of 40 dBs. The average
of 40 dBs was then reduced by 25 dBs (the first 25 dBs were discounted as discussed above) to
equal 15 and multiplied by 1.5 to reach 22.5 percent to hearing loss for the right ear.
Appellant’s testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000
Hz revealed dB losses of 25, 25, 45, and 65, respectively. These dB were totaled at 160 and
were divided by 4 to obtain an average hearing loss at those cycles of 40 dBs. The average of 40
dBs was then reduced by 25 dBs (the first 25 dBs were discounted by the “fence” as required by
the A.M.A., Guides) to equal 15 and multiplied by 1.5 to reach 22.5 percent to hearing loss for
the left ear. OWCP’s medical adviser then applied the binaural formula finding that 5 multiplied
by 22.5 and added to 22.5 and then divided by 6 resulted in 22.5 percent binaural loss. In
accordance with OWCP’s procedures 22.5 binaural loss of hearing is rounded to 23 percent
binaural loss of hearing, the percentage for which appellant previously received a schedule
award.
14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
15

See M.A., supra note 6; Ronald J. Pavlik, 33 ECAB 1596 (1982).

4

As explained above, appellant has not established more than the 23 percent binaural
hearing loss previously awarded in accordance with the A.M.A., Guides. He is, therefore, not
entitled to an additional schedule award.16
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than 23 percent binaural hearing
loss, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2019
Washington, DC

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

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

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

16
Upon return of the case record OWCP should consider administratively combining OWCP File No. xxxxxx320
with OWCP File Nos. xxxxxx319 and xxxxxx005.

5