United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
New Orleans, LA, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1662
Issued: June 1, 2018

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 July 26, 2017 appellant, through counsel, filed a timely appeal from a February 2,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted October 25, 2010 employment incident.
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 27, 2010 appellant, then a 36-year-old veterans’ service representative (VSR)
claims examiner, filed a traumatic injury claim (Form CA-1) alleging that, on October 25, 2010,
while in the performance of duty, she sustained a back strain when a cabinet fell forward as she
was placing a file inside.
On December 3, 2010 OWCP denied appellant’s claim, finding that, while she had
established that an incident occurred on October 25, 2010 as alleged, she had not established that
appellant sustained an injury in connection with the accepted incident.
Appellant requested reconsideration on March 21, 2011 and by decision dated June 15,
2011, OWCP modified its prior decision to find that appellant had established that she sustained
an injury as alleged. The claim, however, remained denied, as she had not established that the
injury was causally related to the accepted October 15, 2010 employment incident.
Appellant again requested reconsideration and by decisions dated July 20 and August 24,
2012, OWCP denied modification of its prior decision. She subsequently appealed to the Board.
By decision dated March 22, 2013, the Board affirmed OWCP’s July 20 and August 24,
2012 decisions, finding that appellant failed to establish that her back, leg, neck, and hand
injuries were causally related to the accepted October 25, 2010 employment incident.4
On August 12, 2013 appellant, through counsel, requested reconsideration, contending
that the medical evidence of record established her claim. Counsel stated that she was
submitting a new supplemental medical report from Dr. Shannon Ceasar, a family practitioner,
which provided additional information and cured the deficiencies of her prior report.
In an undated narrative report, Dr. Ceasar related that she evaluated appellant on
March 27, 2012 for injuries stemming from an October 25, 2010 work-related incident. She
diagnosed displacement of intervertebral disc without myelopathy, degeneration of lumbar or
lumbosacral intervertebral disc, cervicalgia, cervicobrachial syndrome, lumbago, spasm of
muscle, cervical segmental dysfunction and lumbar segmental dysfunction. Dr. Ceasar noted
that, although appellant’s current symptoms existed prior to the October 25, 2010 employment
incident, those symptoms were noticeably exacerbated and aggravated by the incident. She
further concluded that appellant’s previous conditions did not contribute to her present condition.
Dr. Ceasar opined with reasonable medical certainty that the resulting impact of the heavy
cabinet caused an exacerbation and worsening of appellant’s injuries and the continued heavy
workload and lifting exacerbated the problem into the neck and hand.

3

Docket No. 13-0076 (issued March 22, 2013); Docket No. 14-0751 (issued October 20, 2014).

4

Docket No. 13-0076 (issued March 22, 2013).

2

By decision dated January 10, 2014, OWCP denied appellant’s claim, finding that the
medical evidence of record failed to establish that her diagnosed conditions were causally related
to the October 25, 2010 employment incident.
On February 20, 2014 appellant again appealed to the Board. By decision dated
October 20, 2014, the Board affirmed OWCP’s January 10, 2014 decision, finding that she failed
to establish that her back, leg, neck, and hand conditions were causally related to the accepted
October 25, 2010 employment incident.5 The Board found that while Dr. Ceasar addressed
appellant’s preexisting back condition and opined that the October 25, 2010 employment
incident caused a marked exacerbation, she failed to provide a rationalized opinion regarding the
cause of appellant’s diagnosed conditions. Dr. Ceasar provided eight different diagnoses, yet
only generally stated that appellant’s conditions were exacerbated by the October 25, 2010
incident. She failed to address each condition specifically with an opinion on how a falling file
cabinet would cause each of the diagnoses provided. Dr. Ceasar generally stated that, following
the October 25, 2010 employment incident, appellant’s condition worsened due to the weakened
area of the spine which was under a constant state of stress as a result of her work-related duties,
causing the complicated conditions of the upper and mid back. This statement failed to provide a
sufficient explanation as to the mechanism of injury pertaining to this traumatic injury claim,
namely, how a falling cabinet would have caused or aggravated appellant’s multiple claimed
conditions. Without explaining how physiologically the movements involved in the employment
incident caused or contributed to the diagnosed conditions, the Board finds that Dr. Ceasar’s
opinion that the impact of the heavy cabinet caused an exacerbation and worsening of appellant’s
injuries is equivocal in nature and of limited probative value.
On September 1, 2015 appellant, through counsel, requested reconsideration. Counsel
noted submission of a new medical report from Dr. Ceasar which established causal relationship
and addressed the deficiencies found in her previous reports.
In an August 27, 2015 medical report, Dr. Ceasar reported that she evaluated appellant on
March 27, 2012 for injuries stemming from an October 25, 2010 work-related incident. She
explained that appellant worked as a claims examiner for the employing establishment and her
regular job duties entailed retrieving and placing large files in a filing cabinet. On October 25,
2010 appellant suffered a traumatic injury to the neck and lower back when she was placing a
file in the file cabinet when the entire cabinet began to fall forward. This caused her to grab and
hold the cabinet with her arms and hands, resulting in a traumatic injury to the neck and lower
back. Dr. Ceasar explained that the file weighed in excess of 20 pounds, the file cabinet was
four feet tall and weighed in excess of 250 pounds, and appellant was five feet two inches tall
and weighed 140 pounds. She opined that, based on the presentation of injuries and the
mechanism of injury, appellant suffered a traumatic injury to her neck and lower back when she
tried to stop a filing cabinet from falling on top of her. Appellant noted that the file cabinet
weighed in excess of 250 pounds, putting shearing force on appellant’s cervical and lumbar spine
due to exerting herself to keep the cabinet from falling on top of her. Dr. Ceasar diagnosed
displacement of intervertebral disc without myelopathy, degeneration of lumbar or lumbosacral
intervertebral disc, brachial neuritis or radiculitis, cervicalgia, cervicobrachial syndrome,
lumbago, spasm of muscle, cervical segmental dysfunction, and lumbar segmental dysfunction.
5

Docket No. 14-0751 (issued October 20, 2014).

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By letter dated February 10, 2016, counsel for appellant noted submission of a diagnostic
report predating her October 25, 2010 employment injury as requested by OWCP.
In a June 11, 2009 diagnostic report, Dr. Harold Keyserling, a Board-certified radiologist,
reported that a magnetic resonance imaging (MRI) scan of the lumbar spine revealed
degenerative changes at L5-S1 mild bilateral facet arthrosis, L4-5 focal left foraminal disc
protrusion causing mild left foraminal stenosis, and L3-4 mild bilateral facet arthrosis. He
diagnosed focal left foraminal disc protrusion at L4-5 causing mild left foraminal stenosis and
possible impingement of the exiting L4 nerve root.
By decision dated March 23, 2016, OWCP denied modification of its October 20, 2014
decision, finding that the evidence of record failed to establish that appellant’s diagnosed
conditions were causally related to the accepted October 25, 2010 employment incident.
On December 13, 2016 appellant, through counsel, requested reconsideration of OWCP’s
decision. In support of her claim, appellant submitted progress notes dated August 30, 2000
through January 28, 2016 documenting treatment for lower back conditions. She also
resubmitted Dr. Ceasar’s March 27, 2012 evaluation report and the August 27, 2015
supplemental report.
By decision dated February 2, 2017, OWCP denied modification of its March 23, 2016
decision, finding that the evidence of record failed to establish that appellant’s diagnosed
conditions were causally related to the accepted October 25, 2010 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.9 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
6

Supra note 1.

7

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

8

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

9

Elaine Pendleton, supra note 7.

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To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.10 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. 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.11
ANALYSIS
OWCP accepted that the October 25, 2010 employment incident occurred as alleged.
The issue is whether appellant has established that the incident caused her multiple diagnosed
conditions. The Board finds that she did not submit sufficient medical evidence to establish that
her neck, back, leg, and hand conditions were causally related to the October 25, 2010
employment incident.12
Following the Board’s last October 20, 2014 decision, appellant submitted an August 27,
2015 supplemental report from Dr. Ceasar. Counsel argued that this report, along with
Dr. Ceasar’s prior medical reports of record, provided an uncontroverted inference of causal
relationship. The Board finds that the opinion of Dr. Ceasar is not well rationalized.13
In her August 27, 2015 report, Dr. Ceasar diagnosed displacement of intervertebral disc
without myelopathy, degeneration of lumbar or lumbosacral intervertebral disc, brachial neuritis
or radiculitis, cervicalgia, cervicobrachial syndrome, lumbago, spasm of muscle, cervical
segmental dysfunction, and lumbar segmental dysfunction. She opined that based on the
mechanism and presentation of injuries, appellant suffered a traumatic injury to her neck and
lower back when she tried to stop a filing cabinet from falling on top of her when she was
placing a file in the cabinet. The Board notes that Dr. Ceasar’s previously submitted medical
reports failed to adequately describe the mechanism of injury pertaining to this traumatic injury
claim.14 Dr. Ceasar’s additional report fails to rectify the deficiencies, only generally stating that
the 250 pound cabinet put shear force on appellant’s cervical and lumbar spine when she exerted
herself to keep the cabinet from falling on top of her. While she provided additional information
surrounding the employment incident, specifically pertaining to the weight and height of
appellant and the cabinet, these details did not satisfy the inadequacies of her prior reports.
Dr. Ceasar noted eight different diagnoses, but failed to provide a sufficient explanation as to the
10

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

11

James Mack, 43 ECAB 321 (1991).

12

See Robert Broome, 55 ECAB 339 (2004).

13

R.M., Docket No. 11-1921 (issued April 10, 2012).

14

D.H., Docket No. 14-1852 (issued January 27, 2015).

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mechanism of injury pertaining to this traumatic injury claim, namely, how a 250-pound falling
cabinet would cause or aggravate these multiple diagnosed conditions.15 Rather, Dr. Ceasar’s
supplemental report merely provided a more descriptive account of the October 25, 2010
employment incident as related to her by appellant. Such generalized statements do not establish
causal relationship because they merely repeat appellant’s allegations and are unsupported by
adequate medical rationale explaining how this physical activity actually caused the diagnosed
conditions.16
Furthermore, Dr. Keyserling’s June 11, 2009 diagnostic report established a focal left
foraminal disc protrusion at L4-5 causing mild left foraminal stenosis and possible impingement
of the exiting L4 nerve root. This MRI scan, coupled with the VA progress notes dating back to
August 30, 2000, show treatment for a preexisting lumbar injury. The Board notes that where a
person has a preexisting condition that is not disabling, but which becomes disabling because of
aggravation causally related to the employment, then regardless of the degree of such
aggravation, the resulting disability is compensable.17 However, Dr. Ceasar’s August 27, 2015
medical report failed to discuss appellant’s medical history and preexisting lumbar injuries as it
related to the October 25, 2010 employment incident. Her previously submitted medical reports
addressed appellant’s preexisting lumbar injury by only generally stating that the October 25,
2010 employment incident caused a marked exacerbation. Dr. Ceasar did not address why
appellant’s complaints were not caused by her preexisting injury nor did she discuss whether her
preexisting injury had progressed beyond what might be expected from the natural progression
of that condition.18 A well-rationalized opinion is particularly warranted when there is a history
of preexisting condition.19
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. The VA progress notes dated August 30, 2000 through January 28, 2016 document
treatment for a back injury with no opinion on causal relationship. 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.20 As such, these reports are insufficient to meet
appellant’s burden of proof.21
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.22 Appellant’s honest belief that the October 25,
2010 employment incident caused her medical injury is not in question, but that belief, however
15

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

K.W., Docket No. 10-0098 (issued September 10, 2010).

17
P.B., Docket No. 13-1866 (issued March 7, 2014).; S.W., Docket No. 11-1678 (issued February 22, 2012);
Arnold Gustafson, Docket No. 89-0438 (issued October 30, 1989).
18

R.E., Docket No. 14-0868 (issued September 24, 2014).

19

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

20

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

21

S.W., Docket 08-2538 (issued May 21, 2009).

22

D.D., 57 ECAB 734 (2006).

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sincerely held, does not constitute the medical evidence necessary to establish causal
relationship.23
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the October 25, 2010 employment incident and appellant’s claimed
employment injuries. Thus, appellant has failed to meet her burden of proof.
Appellant may submit new evidence or argument, with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
diagnosed conditions are causally related to the October 25, 2010 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2018
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

23

See J.S., Docket No. 17-0507 (issued August 11, 2017).

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

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

Docket No. 10-1408
Issued: February 10, 2011

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 April 27, 2010 appellant filed a timely appeal from the October 30, 2009 decision of
the Office of Workers’ Compensation Programs which denied his request for reconsideration.
Because more than 180 days elapsed between the last merit decision of September 2, 2009 to the
filing of this appeal the Board lacks jurisdiction to review the merits of appellant’s case pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that his request for reconsideration was “denied in part due
to [his] physician[’s] word usage, which was taken out of context by” the Office.
FACTUAL HISTORY
Appellant, then a 52-year-old mail handler, filed an occupational disease claim (Form
CA-2) on June 9, 2009 alleging that he sustained bilateral carpal tunnel syndrome causally

related to factors of his federal employment. He first became aware of the illness and attributed
it to his federal employment on February 24, 2009.
By decision dated September 2, 2009, the Office denied appellant’s claim, finding that he
did not submit sufficient medical evidence to establish that he sustained carpal tunnel due to his
work activities.1 It found that the evidence submitted did not establish that appellant’s condition
was causally related to factors of his federal employment.
On October 2, 2009 appellant requested reconsideration and submitted a September 29,
2009 narrative statement. He noted that Dr. Peter Gulati, Board-certified in family medicine,
diagnosed bilateral severe carpal tunnel syndrome. Appellant advised that his hobbies include
listening to music and watching television and his work duties include repetitive motions and
movements of his hands and wrists. He was referred to a physician who would demonstrate that
his injury was “indeed work related” and that additional medical evidence was forthcoming.2
By decision dated October 30, 2009, the Office denied appellant’s request for
reconsideration of the merits finding that he did not submit new and relevant evidence, nor
advances substantive legal argument not previously considered by the Office.3
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that a timely request
for reconsideration in writing may be reviewed on its merits if the employee has submitted
evidence or an argument that either: (1) shows that the Office erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by the
Office; or (3) constitutes relevant and pertinent new evidence not previously considered by the
Office.5 The Board has held that the submission of evidence which repeats or duplicates
evidence already in the case record does not constitute a basis for reopening a case.6

1

5 U.S.C. §§ 8101-8193.

2

In a decision dated October 30, 2009, the Office indicated that no such medical evidence was received.

3

The Board notes that, following the issuance of the October 30, 2009 Office decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before the
Office 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 the Office, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606.
4

5 U.S.C. § 8101 et seq. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2). See L.T., 61 ECAB ___ (Docket No. 09-1798, issued August 5, 2010).

6

Eugene F. Butler, 36 ECAB 393 (1984).

2

ANALYSIS
In support of his reconsideration request, appellant submitted a narrative statement. The
Board finds that the submission of this statement did not require reopening his case for merit
review. The Office denied his claim based on the lack of medical evidence addressing causal
relation and appellant did not submit any medical evidence with his reconsideration request.
Appellant’s narrative statement merely addressed evidence already in the case record. It does
not constitute relevant and pertinent new evidence and is not sufficient to require the Office to
reopen his claim for further consideration of the merits.7
The Board finds that appellant did not submit any evidence to show that the Office
erroneously applied or interpreted a specific point of law; nor did he advance a relevant legal
argument not previously considered by the Office. As appellant did not meet any of the
necessary requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly refused to reopen his claim for further
consideration of the merits under 5 U.S.C. § 8128.

7

T.E., 108 LRP 22579 (Docket No. 07-2227, issued March 19, 2008); James W. Scott, 55 ECAB 606 (2004);
Butler, supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the October 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2011
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

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

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

Docket No. 14-982
Issued: August 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 25, 2014 appellant filed a timely appeal from a February 24, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a ratable impairment
caused by the accepted noise-induced hearing loss that would warrant a schedule award or
hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 26, 2013 appellant, then a 58-year-old retired customs and border patrol
officer, filed an occupational disease claim alleging that noise exposure at work caused hearing
loss.
Appellant provided a statement describing his work-related noise exposure during
firearms training and while working at airports and seaports. He submitted an audiogram dated
December 14, 2006, reflecting testing at the frequency levels of 500, 1,000, 2,000 and 3,000
cycles per second (cps) and revealing the following: right ear 0, 5, 0 and 5 decibels (dB); left ear
15, 15, 10 and 15 dB, respectively.
In letters dated September 3, 2013, OWCP informed appellant of the evidence needed to
support his claim. It asked that the employing establishment provide information regarding his
noise exposure and hearing conservation measures.
Appellant responded to OWCP’s inquiries on September 9, 2013. He stated that he had
never filed any kind of workers’ compensation claim before and had no history of previous
hearing problems.
On September 17, 2013 the employing establishment responded to OWCP’s inquiries. It
stated that appellant had been exposed to loud noise during his federal employment, including
noise from firearms training, tractors, rail traffic, vehicle traffic, airplane jet engines and ships’
engines at a seaport. The employing establishment noted that he was no longer employed,
having retired as of January 1, 2011.
On October 30, 2013 OWCP referred appellant to Dr. Simon Milov, a Board-certified
otolaryngologist, for an otologic examination and audiological evaluation. In a December 12,
2013 report, Dr. Milov reviewed appellant’s history of noise exposure at work, the statement of
accepted facts and the medical record. He advised that the workplace noise exposure was
sufficient to cause hearing loss. On examination, the ears appeared normal. Dr. Milov submitted
a calibration certification and results of audiometric testing performed by a certified audiologist.
The audiogram performed on December 12, 2013 reflected testing at the frequency levels of 500,
1,000, 2,000 and 3,000 cps and revealed the following: right ear 5, 10, 10 and 10 dBs; left ear 5,
15, 15 and 30 dBs, respectively. Dr. Milov advised that tinnitus was present and that appellant
was a borderline candidate for hearing aids in the left ear.
On February 19, 2014 Dr. H. Mobley, an OWCP medical adviser, reviewed Dr. Milov’s
report and the December 12, 2013 audiogram. He advised that the date of maximum medical
improvement was December 11, 2013 and determined that appellant’s binaural hearing loss was
not severe enough to be ratable under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (hereinafter).2 Dr. Mobley
noted that Dr. Milov had added five percent to appellant’s impairment for tinnitus; but because
appellant did not have a measureable binaural hearing impairment, such addition was contrary to

2

A.M.A., Guides (6th ed. 2008).

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the A.M.A., Guides, which provide “up to five percent may be added to a measureable hearing
impairment.” He advised that hearing aids should not be authorized.
In a February 24, 2014 decision, OWCP accepted that appellant sustained bilateral
hearing loss due to employment-related noise exposure but found that he was not entitled to a
schedule award because the extent of his loss was not severe enough to be ratable. It further
found that he would not benefit from hearing aids.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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.5 The A.M.A., Guides have 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 hertz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides point out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
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.9 The A.M.A., Guides states that, if tinnitus
interferes with activities of daily living, including sleep, reading (and other tasks requiring

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

6

See supra note 4; see F.D., Docket No. 09-1346 (issued July 19, 2010).

7

See A.M.A., Guides 250 (6th ed. 2009).

8

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

9

See supra note 7.

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concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.10
ANALYSIS
The Board finds that the evidence of record does not establish that appellant has a ratable
hearing loss based on his accepted bilateral hearing loss. The December 12, 2013 audiogram
results did not demonstrate ratable values.
The December 12, 2013 audiogram is the only study that complied with OWCP
certification procedures.11 It demonstrated record values at the frequency levels of 1,000, 2,000
and 3,000 cps of 5, 10, 10 and 10 dBs on the right for a total of 35 dBs. This figure, when
divided by four, results in an average hearing loss of 8.75 dBs. The average of 8.75 dBs, when
reduced by the 25 dB fence, results in zero percent monaural hearing loss in the right ear. The
frequency levels on the left at 500, 1,000, 2,000 and 3,000 cps revealed dB losses of 5, 15, 15
and 30, for a total of 65 dBs. This figure, when divided by four, results in an average hearing
loss of 16.25 dBs, which when reduced by the 25 dB fence, results in zero percent monaural
hearing loss of the left ear. The Board notes that Dr. Milov also diagnosed tinnitus. Where a
claimant’s hearing loss is not ratable, the claimant is not entitled to an award for tinnitus.12 The
Board finds that, as the December 12, 2013 audiogram did not demonstrate that appellant’s
hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing loss
condition or for tinnitus.
As to the need for hearing aids, Dr. Milov indicated that appellant was a borderline
candidate, which is not a recommendation that appellant would benefit from hearing aids, but
rather a speculative opinion that appellant may or may not benefit. The district medical adviser
reviewed the record and opined that hearing aids should not be authorized.
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
10

Id. See also R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139 (issued July 13,
2011); Robert E. Cullison, 55 ECAB 570, 573 (2004).
11

OWCP’s procedures set forth requirements for the type of medical evidence used in evaluating hearing loss.
These include that the employee undergo both audiometric and otologic examination; that the audiometric testing
precede the otologic examination; that the audiometric testing be performed by an appropriately certified
audiologist; that the otologic examination be performed by an otolaryngologist certified or eligible for certification
by the American Academy of Otolaryngology; that the audiometric and otologic examination be performed by
different individuals as a method of evaluating the reliability of the findings; that all audiological equipment
authorized for testing meet the calibration protocol contained in the accreditation manual of the American Speech
and Hearing Association; that the audiometric test results include both bone conduction and pure tone air conduction
thresholds, speech reception thresholds and monaural discrimination scores; and that the otolaryngologist’s report
include: date and hour of examination; date and hour of employee’s last exposure to loud noise; a rationalized
medical opinion regarding the relation of the hearing loss to the employment-related noise exposure; and a statement
of the reliability of the tests. Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical
Records, Chapter 3.600.8(a) (September 1995); see Vernon Brown, 54 ECAB 376, 377 (2003).
12

Juan A. Trevino, 54 ECAB 358, 360 (2003).

4

or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduces the degree or the period of any disability or aid in lessening the amount of
any monthly compensation.13 OWCP must therefore exercise discretion in determining whether
the particular service, appliance or supply is likely to affect the purposes specified in FECA.14
There is therefore no probative medical evidence of record that appellant requires hearing
aids. As he did not establish a compensable hearing loss due to his federal noise exposure, the
Board finds that OWCP did not abuse its discretion under section 8103(a) by denying
authorization for hearing aids.15
A December 14, 2006 audiogram indicated that it was obtained by a registered nurse.
The audiogram is unsigned by a physician and does not comport with OWCP certification
procedures. Registered nurses are not included among the health care professionals recognized
as physicians under FECA.16
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that he is entitled to a schedule award or
hearing aids for his employment-related hearing loss, as his hearing loss was not ratable.

13

5 U.S.C. § 8103(a).

14

OWCP has broad discretionary authority in the administration of FECA and must exercise its discretion to
achieve the objectives of section 8103. Marjorie S. Greer, 39 ECAB 1099 (1988).
15

M.M., Docket No. 13-1819 (issued February 19, 2014).

16

See M.B., Docket No. 12-1695 (issued January 29, 2013) (finding that nurse practitioners do not qualify as
physicians under FECA). Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law. 5 U.S.C. § 8101(2). See also Joshua A. Holmes, 42 ECAB 231, 236 (1990) (an audiogram
prepared by an audiologist must be certified by a physician before it can be used to determine hearing loss).

5

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 17-0175
Issued: June 15, 2017

Case Submitted on the Record

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

JURISDICTION
On November 2, 2016 appellant filed a timely appeal from a May 5, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from April 18, 2014, the date of the most recent merit decision, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On December 20, 2013 appellant, then a 49-year-old recreational assistant, filed a
traumatic injury claim (Form CA-1) alleging that on December 19, 2013, she sustained a

1

5 U.S.C. § 8101 et seq.

headache, shoulder stiffness, and a nosebleed as a result of a rear-end collision between vehicles
while in the performance of duty.
By letter dated March 19, 2014, OWCP advised appellant that the evidence of record was
insufficient to support her claim. It noted that it had not received any medical evidence from a
physician in support of her claim. OWCP afforded appellant 30 days to submit additional
evidence to the record. The March 19, 2014 letter was mailed to appellant’s address of record.
In reports dated December 19, 2013, January 17 and 20, 2014, chiropractors noted that
appellant had developed headaches and a cervical sprain/strain.
Appellant submitted notes from physical therapists dated between January 2
and 30, 2014.
In a diagnostic report dated January 29, 2014, Dr. Sinclair Cottingham, a Board-certified
radiologist, examined the results of an x-ray of appellant’s cervical spine. He provided an
impression of moderate-to-severe cervical spondylosis and straightening of cervical lordosis.
Appellant submitted a note from a certified physician assistant dated January 29, 2014.
In a diagnostic report dated March 18, 2014, Dr. Anthony Larhs, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s
cervical spine. He noted right foraminal disc herniation at C5-6, in addition to degenerative
changes.
On April 17, 2014 appellant submitted a letter requesting a change of address.
By decision dated April 18, 2014, OWCP denied appellant’s claim. It noted that
appellant had not submitted any medical evidence from a physician containing a medical
diagnosis causally related to her claimed employment injury. The April 18, 2014 decision was
mailed to appellant’s new address.
On May 22, 2014 OWCP received additional medical evidence from Dr. Greg S. Carrol.2
In a report dated January 29, 2014, Dr. Carrol noted that appellant “sustained an injury to the
cervical spine during a work-related [motor vehicle accident].” He examined her head and neck,
finding tenderness to paraspinal muscles and a positive Spurling’s test in the left arm. Dr. Carrol
diagnosed cervical strain. On April 16, 2014 he assessed appellant with “neck pain.” In a report
dated April 18, 2014, Dr. Carrol again assessed appellant with neck pain, and noted that the
problem began four to six months before that date.
On June 25, 2014 OWCP received a report dated January 30, 2014, from Dr. Brian
Wilkins, a chiropractor, who noted that spinal subluxation was present.
By form dated February 9, 2016, received by OWCP on February 16, 2016, appellant
requested reconsideration. On reconsideration, she included a narrative statement, arguing that

2

Dr. Carrol’s certification in a medical specialty could not be confirmed.

2

she had not received relevant mail from OWCP relating to her case, including the development
letter of March 19, 2014.
By decision dated May 5, 2016, OWCP found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.3 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.4
OWCP may not deny an application for review solely because the application was
untimely filed. When an application for review is untimely filed, it must nevertheless undertake
a limited review to determine whether the application demonstrates clear evidence of error.5
OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.7 The evidence must be positive, precise and explicit and
must manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.9 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.11

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(February 2016). OWCP’s procedure further provides, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing
that the claimant had a dependent but the award was not paid at the augmented rate.”
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

3

The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.12 In order to demonstrate clear evidence of error, the
evidence submitted must not only be of sufficient probative value to create a conflict in medical
opinion or establish a clear procedural error, but must be of sufficient probative value to prima
facie shift the weight of the evidence in favor of the claimant and raise a substantial question as
to the correctness of OWCP’s decision.13
ANALYSIS
The Board finds that in its May 5, 2016 decision, OWCP properly determined that
appellant had failed to file a timely application for review.14 Its regulations provide that the oneyear time limitation period for requesting reconsideration begins on the date of the last merit
decision by OWCP.15 Appellant’s request for reconsideration was received on February 16,
2016, which was more than one year after the April 18, 2014 merit decision. Therefore, she
must demonstrate clear evidence of error on the part of OWCP in issuing its April 18, 2014
decision.
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in issuing its April 18, 2014 decision. She did not submit the type of positive,
precise, and explicit evidence manifesting on its face that OWCP committed an error.
In her request for reconsideration, appellant included a narrative statement alleging that
she had not received correspondence from OWCP relevant to her case, as she had changed her
address. The case record contains her request for a change of address, dated April 17, 2014. The
decision of April 18, 2014 was sent to the new address. OWCP’s development letter of
March 19, 2014 was sent to her previous address, but OWCP was not notified until April 17,
2014 of the address change. As such, the allegation that she did not receive the development
letter was not an error on the part of OWCP.
Moreover, a review of the medical evidence submitted to the record after the decision of
April 18, 2014 does not demonstrate that OWCP committed error when it denied her claim as not
establishing the medical component of fact of injury.
Following OWCP’s April 18, 2014 decision OWCP received several reports from
Dr. Carrol wherein he noted appellant’s symptoms, including neck pain. In a report dated
January 29, 2014 he diagnosed cervical strain. OWCP also received an April 16, 2014 report
from a chiropractor who noted that appellant had spinal subluxation. These reports did not
12

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

13

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

14

The Board notes that the cover page of the May 5, 2016 decision incorrectly stated that OWCP reviewed the
merits of appellant’s case under 5 U.S.C. § 8128. However, as the decision itself applied the clear evidence of error
standard, the Board will apply the correct clear evidence of standard in this appeal. See G.F., Docket No. 07-1385
(issued December 11, 2007).
15

20 C.F.R. § 10.607(a).

4

provide a detailed description of the accepted incident, and neither established causal
relationship nor raised a substantial question as to the correctness of OWCP’s decision. As
previously noted, even a report such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical evidence
requiring further development is insufficient to demonstrate clear evidence of error.16
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s April 18, 2014 decision. Thus OWCP properly
denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 15, 2017
Washington, DC

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

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

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

16

See G.M., Docket No. 17-0149 (issued May 11, 2017).

5


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

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-821
Issued: November 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 28, 2014 appellant, through her attorney, filed a timely appeal from a
September 5, 2013 decision of the Office of Workers’ Compensation (OWCP) Programs
terminating her compensation benefits. 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.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits for her accepted cervical and lumbar injury effective September 5, 2013.
FACTUAL HISTORY
On February 14, 2012 appellant, then a 37-year-old motor vehicle driver, injured her back
while pushing an all-purpose container. OWCP accepted her claim for lumbar and cervical
1

5 U.S.C. §§ 8101-8193.

sprain. Appellant stopped work on February 15, 2012 and returned to light-duty work on
March 14, 2012. Thereafter, she worked intermittently and received wage-loss compensation for
the hours that she did not work.
Appellant submitted a February 14, 2012 x-ray of the thoracic spine which revealed mild
scoliosis of the thoracolumbar spine with no fracture or segmentation. She came under the
treatment of Dr. Tasha Dickerson, a Board-certified internist, from February 23, 2012 to
February 20, 2013, for the back injury sustained on February 14, 2012. A June 21, 2012
magnetic resonance imaging scan of the cervical spine revealed no disc herniations.
Dr. Dickerson diagnosed lower back strain and migraines and recommended physical therapy.
In a January 19, 2013 duty status report, she noted that appellant returned to light-duty work on
February 22, 2012, eight hours a day, with restrictions. In return to work slips dated February 20
and March 6, 2013, Dr. Dickerson advised that appellant became completely disabled on
February 6, 2013. Concurrently, she made a psychiatric referral appellant.
On February 19, 2013 OWCP referred appellant to Dr. Kevin F. Hanley, a Boardcertified orthopedic surgeon, to determine if the accepted conditions had resolved. In a March 7,
2013 report, Dr. Hanley reviewed the medical records provided and examined appellant.
Appellant had pain over the left trapezius and parascapular musculature without spasm,
unrestricted range of shoulder motion, tenderness in the left paraspinal muscles without spasm,
full lumbar range of motion, active and equal reflexes, intact strength and no sensory loss with
tenderness over the parascapular musculature.
Dr. Hanley diagnosed a history of a
musculoligamentous strain injury to the neck and back with residual myofascial discomfort. He
found that there were no objective findings on examination that the myofascial pain syndrome
arose as a consequence of direct work exposure. Dr. Hanley opined that appellant failed medical
treatment and further intervention would not be of any value. He noted that her condition had a
psychophysiologic basis and would not resolve until she was so motivated. Dr. Hanley did not
believe that appellant was totally disabled and opined that she could work full-time regular
duties. He noted that she continued to express subjective complaints but they were not objective
residuals of the work injury as the accepted injury had long since resolved. In a March 7, 2013
work capacity evaluation, Dr. Hanley noted that appellant could return to work regular duty.
Appellant submitted return to work slips from Dr. Dickerson dated March 20 and
29, 2013. Dr. Dickerson found that appellant was totally disabled. In a report dated April 12,
2013, she noted that appellant’s condition improved with physical therapy and spinal injections;
but when appellant returned to work, her job activities and a long commute to work exacerbated
her condition and she developed migraine headaches. Dr. Dickerson noted that appellant was
totally disabled as of February 6, 2013. In a duty status report dated April 12, 2013, she
reiterated that appellant remained totally disabled.
On April 24, 2013 OWCP proposed to terminate appellant’s compensation benefits
finding that Dr. Hanley’s report established no continuing residuals of her work-related
conditions.
Appellant submitted reports from Dr. Cletus C. Aralu, a Board-certified neurologist,
dated January 2 to May 20, 2013, who treated her for chronic headaches and neck and back
muscle spasms. Dr. Aralu noted a history of appellant’s injury on February 14, 2012 and

2

diagnosed chronic post-traumatic stress disorder, tendinitis, anxiety disorder, dizziness,
myofascial pain syndrome, muscle disorder, muscle weakness, cervical syndrome, major
depression, thoracolumbar disorder, chronic post-traumatic headaches. He stated that the
conditions were directly caused by her accepted work injury. Dr. Aralu opined that, when
appellant returned to work, her accepted conditions became aggravated. Appellant submitted
reports from Dr. Albert Jones, Jr., a Board-certified orthopedic surgeon, from February 7 to
May 30, 2013, who diagnosed work-related strain of the cervical and lumbar spine with
myofascial pain and performed a series of trigger point injections.
Appellant also submitted return to work slips from Dr. Dickerson dated April 24 and
May 8, 2013, which advised that she was totally disabled until June 19, 2013. In an undated
report, Dr. Dickerson opined that appellant’s condition was exacerbated by her long commute to
work, her modified job assignment, which consisted of repetitive use of the injured areas and not
receiving treatment for all injured areas from the initial injury. She reviewed Dr. Hanley’s report
and disagreed with his findings. Dr. Dickerson opined that appellant was not medically cleared
to return to work until her work restrictions were addressed by the employing establishment and
her driving ability improved.
On June 4, 2013 appellant filed a Form CA-2a, notice of recurrence of disability, alleging
disability causally related to her work injury on March 25, 2012. She submitted physical therapy
reports dated July 24, 2012 to March 1, 2013. Appellant submitted a June 20, 2013 report from
Dr. Jones, who performed a shoulder girdle trigger point injection. She also submitted reports
and disability slips from Dr. Dickerson dated March 20 to July 10, 2013. Dr. Dickerson
diagnosed neck sprain and strain, migraines and depressive disorder. She noted that appellant
remained totally disabled.
Reports from Dr. Aralu dated May 23 to June 26, 2013, diagnosed chronic post-traumatic
stress disorder, tendinitis, anxiety disorder, dizziness, myofascial pain syndrome, muscle
disorder, muscle weakness, cervical syndrome, major depression, thoracolumbar disorder and
chronic post-traumatic headaches. He opined that these conditions were directly related to
appellant’s work injury. Dr. Aralu opined that her accepted injuries were aggravated when she
returned to work and she remained totally disabled.
OWCP found a conflict of medical opinion arose between Dr. Dickerson and Dr. Aralu,
who found that appellant had residuals of her work-related injuries and was totally disabled and
Dr. Hanley, who determined that her accepted conditions had resolved and she could return to
work full-time regular duty.
On July 1, 2013 OWCP referred appellant to Dr. William K. Fleming, a Board-certified
orthopedic surgeon, selected as the impartial medical specialist. In a July 31, 2013 report,
Dr. Fleming noted reviewing the record, including the history of her work injury and examining
her. He noted soreness in the lumbar paraspinal muscle group toward the trapezius on the left
side and neck area. Forward bending was 85 degrees. Appellant was unable to touch her chin to
her chest. She had intact muscle strength in the arms with no atrophy and reflexes were
symmetrical in both the upper and lower extremities. Appellant could toe and heel walk and had
no atrophy in her legs. Dr. Fleming opined that she improved from her work-related injury of
neck and back sprain and she had no residuals that were documented medically in the records or

3

on examination that were causally related to the initial injury. He advised that appellant
sustained no permanent injury as a result of the February 14, 2012 work accident. Dr. Fleming
opined that her present condition of neck and back pain was not causally related to the 2012
injury as there was no documented medical condition that required a prolonged recovery period.
He found no evidence of myofascial pain syndrome and noted that appellant simply had
complaints of neck and back pain without physical findings to substantiate her symptoms.
Dr. Fleming found no other conditions that were consequential to the injury of
February 14, 2012. He opined that appellant could return to her date-of-injury position as a truck
driver and that no surgery, medication or chiropractic care was indicated. Dr. Fleming noted that
she had no limitations in her ability to take supervision, cooperate with others or work under
deadlines. He advised that light duty could be a starting point but he did not believe part-time
work was necessary or beneficial. Dr. Fleming indicated that the past period of total disability
was based on the judgment of the treating physicians but he found no medical evidence which
would support a prolonged period of disability for the accepted condition of neck and back
sprain. In an August 22, 2013 work capacity evaluation, he noted that appellant was capable of
performing her usual job and that maximum medical improvement was reached. Dr. Fleming
noted limitations on twisting, bending/stooping, squatting and kneeling to one hour.
In a decision dated September 5, 2013, OWCP terminated appellant’s medical and
compensation benefits effective that day, finding that the weight of medical opinion established
that she had no continuing residuals of her accepted conditions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 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.3 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.4
ANALYSIS
OWCP accepted appellant’s claim for lumbar and neck sprain. It found that a conflict in
medical opinion existed between Drs. Dickerson and Aralu, appellant’s physicians who indicated
that appellant had residuals of her work injuries and was totally disabled and Dr. Hanley, a
second opinion physician who found that her accepted conditions had resolved and she could
work full time without restrictions. Consequently, OWCP referred appellant to Dr. Fleming to
resolve the conflict.
2

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

3

Mary A. Lowe, 52 ECAB 223 (2001).

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

The Board finds that, under the circumstances of this case, the opinion of Dr. Fleming is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight. Dr. Fleming’s report establishes that disabling residuals of appellant’s workrelated conditions have ceased. Where there exists a conflict of medical opinion and the case is
referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled
to special weight.5
In a July 31, 2013, report, Dr. Fleming reviewed appellant’s history, noted findings and
determined that appellant had no objective complaints or findings due to the accepted conditions.
He opined that she improved from her work-related injury of neck and back sprain and she had
no documented residuals that were causally related to the initial injury. Dr. Fleming noted that
appellant sustained no permanent injury due to the February 14, 2012 work injury. He opined
that her present condition of neck and back pain was not causally related to the 2012 injury as
there was no documented medical condition that would require a prolonged recovery period.
Dr. Fleming found no evidence of myofascial pain syndrome and noted that appellant simply had
complaints of neck and back pain without physical findings to substantiate her symptoms. He
found no other conditions which were consequential to the February 14, 2012 injury.
Dr. Fleming opined that appellant could return to her date-of-injury position as a truck driver and
that no further treatment was required. He determined that appellant was able to take
supervision, cooperate with others and work under deadlines. Dr. Fleming noted that light duty
could be a starting point but he did not believe that part-time work was necessary or beneficial.
He indicated that the past period of temporary total disability was based on the judgment of the
treating physicians but he found no medical evidence which would support a prolonged period of
disability for the accepted conditions. In a work capacity evaluation dated August 22, 2013,
Dr. Fleming noted that appellant was capable of performing her usual job and that maximum
medical improvement was reached.
Although he noted limitations on twisting,
bending/stooping, squatting and kneeling, he did not attribute this to the accepted conditions.
The Board finds that Dr. Fleming had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Fleming is a specialist in the appropriate field. He did
not indicate that there was a work-related reason for disability or treatment. Dr. Fleming’s
opinion as set forth in his report of July 31, 2013 is found to be probative evidence and reliable.
The Board finds that his opinion constitutes the weight of the medical evidence and is sufficient
to justify OWCP’s termination of wage-loss and medical benefits for the accepted conditions.
Subsequent to Dr. Fleming’s July 31, 2013 report, appellant did not submit additional
medical evidence prior to the termination of benefits. There are no other medical reports of
record, following his resolution of the medical conflict providing a reasoned opinion supporting
that she has a continuing work-related condition or disability.
On appeal, appellant asserted that she continued to have residuals of her accepted workrelated condition that OWCP improperly terminated her compensation benefits as Dr. Fleming’s
report was not based on an accurate history. As noted, the Board finds that his opinion
5

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

5

constitutes the weight of the medical evidence and is sufficient to support the termination of
wage-loss and medical benefits for the accepted cervical and lumber sprain conditions.
Dr. Fleming’s report reflects that he reviewed the record and there is no evidence that he had an
inaccurate history.
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 OWCP met its burden of proof to terminate benefits effective
September 5, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2013 is affirmed.
Issued: November 3, 2014
Washington, DC

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

Patricia Howard Fitzgerald, 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
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1692
Issued: April 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 15, 2011 appellant, through his attorney, filed a timely appeal from the Office of
Workers’ Compensation Programs’ (OWCP) decision dated January 5, 2011. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of the
right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
Appellant, a 39-year-old letter carrier, injured his right knee on June 14, 2007 while
lifting a letter tray. He filed a claim for benefits on June 14, 2007, which OWCP accepted for
right knee medial collateral ligament sprain and right knee medial meniscus tear.
1

5 U.S.C. § 8101 et seq.

On February 19, 2008 Dr. Gary C. Canner, Board-certified in orthopedic surgery,
performed a partial medial meniscectomy procedure on appellant’s right knee.
In a report dated September 23, 2008, Dr. Arthur F. Becan, Board-certified in orthopedic
surgery, found that appellant had 19 percent right lower extremity impairment. He based this
rating on atrophy of his right thigh, 13 percent impairment pursuant to Table 17-6, at page 546 of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides), atrophy of the right calf under Table 17-6, 3 percent impairment and
3 percent impairment for pain pursuant to Table 18-1.
On December 16, 2008 appellant filed a Form CA-7 claim for a schedule award based on
a partial loss of use of his right lower extremity.
Appellant was referred to Dr. Robert F. Draper, Board-certified in orthopedic surgery, for
a second opinion examination. Dr. Draper found in a February 19, 2009 report that appellant had
a two percent right lower extremity impairment based on a partial meniscectomy pursuant to
Table 17-33, page 546 of the fifth edition of the A.M.A., Guides.
By decision dated March 25, 2009, OWCP granted appellant a schedule award for a two
percent permanent impairment of the right lower extremity for the period February 19 to
March 31, 2009, for a total of 5.76 weeks of compensation.
By letter dated March 31, 2009, appellant, through his attorney, requested an oral
hearing.
By decision dated June 3, 2009, OWCP’s hearing representative set aside the March 25,
2009 schedule award decision. She found that there was a conflict in the medical evidence
between the opinions of Dr. Becan, appellant’s treating physician and Dr. Draper, the second
opinion examiner, regarding the appropriate degree of impairment stemming from appellant’s
accepted right knee condition. The hearing representative further found that Dr. Draper failed to
comment on Dr. Becan’s findings that appellant had impairment stemming from his right thigh
and right calf atrophy. She remanded for referral to an impartial medical examiner to resolve the
outstanding conflict in the medical evidence.
Appellant was referred to Dr. John Donahue, Board-certified in orthopedic surgery and
an impartial medical examiner, who found in a November 2, 2009 report that appellant had a one
percent impairment pursuant to the updated, sixth edition of the A.M.A., Guides.
By decision dated December 3, 2009, OWCP denied modification of the March 25, 2009
decision.
By letter dated December 8, 2009, counsel requested an oral hearing.
In an OWCP memorandum dated May 5, 2010, the claims examiner stated that any
decision issued after May 1, 2009 must be in accordance with the updated, sixth edition of the
A.M.A., Guides. He noted that since Dr. Donahue’s November 2, 2009 referee examination
resolved a conflict between two reports containing an impairment rating under the fifth edition of
the A.M.A., Guides, it was not valid resolution of the conflict. The claims examiner stated that
2

the conflict could not be resolved inasmuch as one edition of the A.M.A., Guides uses subjective
findings and the other relied on objective findings. He therefore scheduled appellant for a
second opinion examination under the sixth edition of the A.M.A., Guides.
OWCP referred appellant to Dr. Steven J. Valentino, an osteopath, who found in a
May 25, 2010 report that appellant had a two percent right lower extremity impairment under the
sixth edition of the A.M.A., Guides. Dr. Valentino rendered this rating pursuant to Table 16-3,
page 509 of the A.M.A., Guides, which outlines an impairment rating based on a partial
meniscectomy, under a class 2 impairment.2
In a report dated July 6, 2010, Dr. Christopher Brigham, Board-certified in orthopedic
surgery and OWCP’s medical adviser, determined that appellant had a one percent permanent
impairment of the right lower extremity. He found, however, that Dr. Valentino’s findings were
“supportable.”
By decision dated July 7, 2010, OWCP denied appellant’s request for an additional
schedule award.
By letter dated July 13, 2010, appellant, through counsel, requested an oral hearing.
By decision dated August 23, 2010, OWCP’s hearing representative set aside the July 7,
2010 decision. She found that there was an unresolved conflict in the medical evidence between
the opinions of Dr. Becan, appellant’s treating physician and Dr. Valentino, the second opinion
examiner, regarding the appropriate degree of impairment stemming from appellant’s accepted
right knee condition. The hearing representative remanded for referral to an impartial medical
examiner to resolve the outstanding conflict in the medical evidence.
Appellant was referred to Dr. William H. Spellman, Board-certified in orthopedic
surgery, for a referee medical examination. In an October 29, 2010 report, Dr. Spellman
reviewed the medical history and the statement of accepted facts, stated findings on examination,
and concluded that appellant had a two percent impairment of his right lower extremity under the
A.M.A., Guides. He found that appellant had a default impairment of class 1, which yielded a
grade D impairment of two percent at Table 16-3, page 509 of the A.M.A., Guides.3
Dr. Spellman applied the net adjustment formula at pages 521-22 of the A.M.A., Guides4,
finding that the grade modifier at Table 16-6 for functional history was zero, the grade modifier
for physical examination at Table 16-7 was minus one and the grade modifier at Table 16-8 for
clinical studies was two. He stated:
“In the case of this patient, the important grade modifier was in the class, grade
modifier for clinical studies. The important finding here was the x-ray finding,
reported by Dr. Canner: “standing AP and lateral of the right knee … shows
severe collapse of the medial compartment although not all quite bone on bone.
2

A.M.A., Guides 509.

3

Id. at 509.

4

Id. at 521-22.

3

“Table 16-8, page 519, states that the cartilage interval loss needs to be compared to the
opposite uninjured side. Assuming when a weight-bearing film of both knees is
compared the cartilage interval is normal or less than 25 percent compared to the opposite
uninjured side, the grade modifier would be 1.
“On a regional grid [at] [T]able 16-3, this would result in a shift from default C, one
place to the left, B. This still corresponds with [two] percent impairment of the right
lower extremity.”
In a report dated December 21, 2010, Dr. Brigham, OWCP’s medical adviser, reiterated
his previous determination that appellant had a one percent permanent impairment of the right
lower extremity. As he found with regards to Dr. Valentino, however, he found that
Dr. Spellman’s findings were “supportable.”
By decision dated January 5, 2011, OWCP denied appellant’s request for an additional
schedule award. It found that Dr. Spellman’s impartial opinion represented the weight of the
medical evidence.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 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.7 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.8
Section 8123(a) 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.9 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.10
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

9

Regina T. Pellecchia, 53 ECAB 155 (2001).

10

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

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ANALYSIS
In its January 5, 2011 decision, OWCP properly found that appellant was not entitled to
an additional schedule award. It relied on Dr. Spellman’s impartial opinion that appellant had a
schedule award for a two percent right lower extremity impairment based on a partial
meniscectomy, pursuant to Table 16-3 of the A.M.A., Guides. The Board notes that the A.M.A.,
Guides directs examiners to rate diagnosis-based impairments for the lower extremities pursuant
to Chapter 16, which states at page 497, section 16.2a that impairments are defined by class and
grade. In accordance with this section the examiner is instructed to utilize the net adjustment
formula outlined at pages 521-22 of the A.M.A., Guides, to obtain the proper impairment rating.
Dr. Spellman determined that appellant’s partial meniscectomy should be rated as a two percent
impairment, as a class 1 impairment, pursuant to the regional grid at Table 16-3, page 509 of the
A.M.A., Guides. He applied the net adjustment formula at pages 521-22 of the A.M.A., Guides,
finding that the grade modifier at Table 16-6 for functional history was zero, the grade modifier
for physical examination at Table 16-7 was minus one and the grade modifier at Table 16-8 for
clinical studies was two, grade modifier at Table 16-8 for clinical studies was two. Dr. Spellman
stated that the grade modifier for clinical studies was the most significant factor in rendering
appellant’s impairment rating. He noted that Dr. Canner’s x-ray finding of the right knee
showed a severe collapse of the medial compartment, nearly bone to bone in the meniscus.
Table 16-8 at page 519 instructs the examiner to compare the cartilage interval loss to the
opposite, uninjured side; under this table, where a weight-bearing film of both knees is compared
and the cartilage interval is normal or less than 25 percent compared to the opposite uninjured
side, the grade modifier would be one. Dr. Spellman stated that, under the regional grid at Table
16-3, page 509, this would result in a shift from default C to default B, which yielded a two
percent impairment of the right lower extremity.
In his appeal to the Board, counsel argues that OWCP erred by allowing the same
medical adviser, Dr. Bingham, who reviewed Dr. Valentino’s May 25, 2010 second opinion
report to review Dr. Spellman’s October 29, 2010 impartial report. OWCP, however, did not
rely on Dr. Bingham’s report in its January 5, 2011 decision. Rather, it relied on the impartial
report of Dr. Spellman. Finally, counsel contends that appellant is also entitled to an impairment
for the right calf atrophy which was identified by several physicians of record. The Board finds,
however, that OWCP properly relied on Dr. Spellman’s impartial opinion, which determined by
measurement that there was no difference in calf circumference. Dr. Spellman reviewed the
entire medical history, was sufficiently probative, rationalized and based upon a proper factual
background and entitled to the special weight of an impartial medical examiner.11 The Board
therefore finds that his opinion constituted the weight of medical opinion and supports OWCP’s
determination denying appellant an additional schedule award greater than the two percent
already awarded. The Board will affirm the January 5, 2011 decision.
Appellant may request an increased schedule award, at anytime, based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

11

Gary R. Seiber, 46 ECAB 215 (1994).

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CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
the right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6