United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.O., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ALASKA NATIONAL GUARD,
Fort Richardson, AK, Employer
__________________________________________
Appearances:
John E Goodwin, Esq., for the appellant
Miriam D. Ozur, Esq., for the Director

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Docket No. 06-1626
Issued: June 26, 2007

Oral Argument November 8, 2006

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

JURISDICTION
On July 11, 2006 appellant filed a timely appeal from a January 23, 2006 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial of
his emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant sustained an emotional condition causally related to
factors of his federal civilian employment. On appeal, he contends that there is a sufficient
relationship between his military duties and his civilian employment to establish that his
emotional condition arose while in the performance of duty.
FACTUAL HISTORY
On December 10, 2003 appellant, then a 50-year-old employee relations specialist, filed
an occupational disease claim alleging that he developed an emotional condition due to his

federal employment.
Appellant described as occupational stressors his “protective
communications and subsequent withdrawal of [f]ederal recognition.” He first became aware of
his condition in November 1997 and realized it was caused or aggravated by his employment on
November 13, 2003. Appellant stopped work on November 10, 2003 and has not returned.1
Lieutenant Colonel Catherine Jorgensen, appellant’s supervisor, noted that the employing
establishment controverted the claim.
The record reflects that, beginning in 1993 and through 1996, while a Major in the
Alaska Air National Guard, appellant filed several complaints alleging waste, fraud and abuse on
the part of senior military officers. He alleged that his communications concerning these
allegations were protected and that he had experienced reprisal. Appellant noted that he was not
selected for a civil service position with the National Guard in 1996; notified on February 28,
1997 that he was being processed for an administrative discharge from the military; and on
March 7, 1997 advised that his security clearance was being suspended. The matter was
forwarded to the Inspector General of the Air Force, who conducted an investigation as reflected
in the August 18, 1997 report of Colonel Martin D. Carpenter. The report determined that
misuse of government funds by senior military officers had been substantiated from
investigations initiated by appellant and others. Colonel Carpenter found that the record did not
demonstrate poor duty performance or documented moral or professional dereliction on the part
of appellant such that the proposed separation action and suspension of his security clearance
were “obvious reprisal for his negative comments about Alaska National Guard leadership.”
In an affidavit of record, appellant noted that his security clearance was reinstated in
February 1998. He advised that the Director of the Air Force Review Board ordered correction
to his military records, including expunging performance evaluations conducted from 1995
through 1998 and that appellant be transferred to the Air Force Reserves and considered for a
promotion. Appellant explained that during the period his security clearance was suspended, he
completed those work tasks assigned that did not require a clearance. He stated that it became
obvious that the military was not going to take action against senior leadership and he pursued a
separate complaint in District Court. On June 20, 2000 the Department of Air Force Review
Boards Agency directed the correction of appellant’s military records pertaining to “actions in
1997 to withdraw his [f]ederal recognition, discharge him from the Alaska Air National Guard,
and to suspend his security clearance.” Appellant was assigned to the grade of Lieutenant
Colonel and it was noted that he should be transferred to the Air Force Reserve.
In a May 14, 2004 letter, the Office advised appellant that the evidence of record was
insufficient to determine his eligibility for benefits under the Federal Employees’ Compensation
Act. Appellant was directed to provide additional factual evidence pertaining to his allegations,
noting whether they arose from his military or civilian duties and a rationalized report from a
physician discussing the cause of his emotional condition as it pertained to work and nonwork
stressors. The Office also requested additional evidence from the employing establishment.

1

In a December 9, 2003 report, Dr. David E. Telford, a psychiatrist, noted that appellant was hospitalized from
November 14 to 20, 2003 for treatment of an anxiety disorder. He recommended that appellant not return to work
and seek an early retirement.

2

In a letter dated June 9, 2004, Colonel Deborah C. McManus, a human resources officer,
controverted appellant’s claim on behalf of the employing establishment. She asserted that
events related to appellant’s military status had been rectified and there was no evidence of a
hostile work environment in his full-time civilian technician status. Colonel McManus stated
that after appellant was reassigned to human resources on September 7, 2003 progressive
disciplinary measures were in order based on his unscheduled and unexcused absences. From
September 7 through December 11, 2003 unscheduled leave was approved until appellant’s sick
and annual leave balances were exhausted. He was extended 12 weeks of family and medical
leave pending submission of medical documentation. However, the evidence submitted from a
physician merely explained a five-day absence from November 14 to 20, 2003. Appellant was
assigned a dedicated trainer, but was repeatedly unavailable for training sessions. He advised
Colonel McManus on February 11, 2004 that he would not be returning. Colonel McManus
noted that appellant had not been to work since November 10, 2003, but the agency had delayed
any adverse personnel action pending receipt of his disability retirement application.
In a June 17, 2004 letter to the Office, appellant noted that he was still an employee of the
Alaska Air National Guard and that he had a case pending before the Air Force Board for
Correction of Military Records “to resolve issues that have come about due to the Hostile
Working Environment from the Military Side.” He also provided a September 10, 2001 fitnessfor-duty evaluation, personnel forms from January 7, 1996 to January 11, 2004 noting his
position title and number, memoranda dated June 20, 2000, April 30, 2001 and April 7, 2004, a
December 8, 2003 report from Geraldine H. Ferry of Emmanuel Christian Counseling and
medical evidence from Dr. Samuel Schurig, an osteopath and flight surgeon.
In a September 22, 2004 decision, the Office found that appellant did not establish that he
sustained an emotional condition arising in the performance of duty. It noted that appellant was
employed in a dual capacity as a member of the military and as civilian employee. The Office
found that the withdrawal of federal recognition concerned appellant’s status as a military officer
and his protected communications were shown to concern military personnel not directly
connected to his civilian position. While appellant experienced reprisal because of his whistleblowing communications, this pertained to his military career and function as demonstrated by
the withdrawal of federal recognition and suspension of his security clearance. The Office found
that appellant did not provide examples of a hostile work environment arising in his civilian
employment.
On October 6, 2004 appellant requested an oral hearing which was held on
October 20, 2005. He testified that his supervisor, Colonel Danny Nice, moved him from his
position as an administrative officer to a logistics officer on July 7, 1996. Appellant identified
Colonel Nice as an individual involved in appellant’s whistle-blowing activities. He contended
that the whistle blowing involved both his military and civilian employment as he performed the
same positions, as an administrative officer, management analyst and logistics specialist, in both
his civilian and military employment. Appellant advised that he had the same supervisors in
these positions. He noted that five days a week were spent working as a civilian employee and
two days a month were spent in his military position. Appellant stated that his security clearance
was taken on March 7, 1997 while in a civilian status. Although he was named as the installation
mobility officer, appellant stated that the employing establishment did not make any
accommodations for the activities related to his security clearance. These included looking at

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classified war plans, checking hazardous cargo and verifying classified documents. Appellant
noted that he prepared a monthly report which dealt with unclassified information.
Appellant alleged that General Ken Taylor gave three briefings in the fall of 1996, one
for the enlisted troops, one for the officers and one for the technicians and had mentioned
appellant as an example of somebody who was unethical, lacked professionalism and exhibited
behavior unbecoming of an officer. Colonel Larson identified appellant to others and said he
was going to be fired for unethical behavior. Appellant indicated that he was the only Major
meeting with the Withdrawal of Federal Recognition Board, a local board with jurisdiction over
the Alaska Air Guard, at the time. Appellant’s attorney contended that appellant’s security
clearance was improperly suspended, he was improperly reassigned from administrative officer
to logistic officer and he sustained stress from not being able to perform his assigned duties as a
logistic officer without a security clearance.
By decision dated January 23, 2006, an Office hearing representative affirmed the
September 22, 2004 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Administrative and personnel matters, although related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not generally covered under the Act.4 However, where the
evidence establishes error or abuse on the part of the employing establishment in what would
otherwise be an administrative matter, coverage may be afforded.5 In determining whether the
employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably.6

2

See, Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
5

See William H. Fortner, 49 ECAB 324 (1998).

6

Ruth S. Johnson, 46 ECAB 237 (1994).

4

For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.8 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.9 The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant attributed his stress to protected communications (whistle-blowing activities)
resulting in harassment and retaliatory actions, including the improper suspension of his security
clearance in 1997. The harassment occurred, he alleged, following charges of waste, fraud and
abuse against several senior military officers in the Alaska Air National Guard. Appellant
alleged that his reassignment to the logistic officer position and the removal of his security
clearance caused fear and anxiety about his ability to perform his job.
An August 18, 1997 investigative report verified that appellant’s military employer erred
in suspending his security clearance and that the suspension of his security clearance caused
7

See Michael Ewanichak, 48 ECAB 364 (1997).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

9

See James E. Norris, 52 ECAB 93 (2000).

10

Beverly R. Jones, 55 ECAB 411 (2004).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Id.

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problems as appellant no longer had access to classified material and was unable to participate in
periodic exercises. However, as appellant was employed in dual capacity as a military and
civilian federal employee, he must establish a relationship between the alleged incidents and his
civilian federal employment to bring it under the coverage of the Act. The record reflects that in
1998, the Department of the Air Force took action to correct appellant’s military records
pertaining to the withdrawal of his federal recognition in 1997 and the suspension of his military
security clearance. The military review board also directed consideration of appellant’s
promotion which he subsequently received.
With his claim filed in 2003, appellant has premised his contention for coverage under
the Act to the actions taken in the military during the period 1993 to 2000. In claims arising
from individuals employed in a dual capacity while in the military reserves, the Board has
carefully distinguished those claims giving rise based on the individual’s military status from
those pertaining to his or her civilian job duties. In Patrick O’Hara,13 the claimant fractured his
right wrist while on annual active duty in the Army reserve. The Board held that he was not
injured while in the performance of duty under the Act, as his injury while on active duty had an
insufficient relation to the performance of his federal civilian duties. In Jerry C. Gilliam,14 the
claimant filed a claim for an emotional condition after being discharged by the National Guard
for exceeding weight standards. The Board denied the claim, noting that the weight requirement
was solely imposed by his military employment such that his resulting emotional condition did
not have a sufficient relationship to the performance of his civilian duties.15 In Evelyn Kay
Cavness (Jimmy L. Cavness),16 the Board denied a widow’s claim for death benefits. It found
that the employee’s death on February 25, 1986 was causally related to a June 22, 1984
myocardial infarction which arose while he was in the line of duty on an active-duty training
mission.
The origin of appellant’s work stressors while in military service are highlighted by his
June 17, 2004 letter to the Office. He noted that he was still an employee of the Alaska Air
National Guard and that he had a case pending before the Air Force Board for Correction of
Military Records “to resolve issues that have come about due to the Hostile Working
Environment from the Military Side.” On appeal, appellant contends that the facts of his claim
are similar to those arising in James M. Frandle.17 In Frandle, the employee attributed his heart
attack to both his civilian and National Guard positions as a vehicle maintenance mechanic. The
Board found that the record established a sufficient relationship between the claimant’s weekend
military duties and his civilian employment that the events occurring on the weekend became a
condition of his civilian employment. The Board distinguished the weight requirement in
Gilliam, which was required solely by the military employer, from the functions the claimant
13

34 ECAB 493 (1982).

14

39 ECAB 1003 (1988).

15

Id. The Board also found against the claimant’s allegations that he was harassed by his civilian supervisors and
coworkers.
16

40 ECAB 1016 (1989).

17

Docket No. 94-419 (issued September 10, 1996).

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performed in both his military and civilian employment in the operation of the vehicle
maintenance shop. Unlike the claimant in Frandle, the matters giving rise to the harassment and
hostile work environment claimed by appellant began with his complaint, among others of
financial waste, fraud and abuse on the part of senior military officers serving in the Alaska Air
National Guard. Actions were taken by military superiors during 1997 impacting his status in
the military, including the temporary suspension of his security clearance and military
performance appraisals. Appellant sought remedy before the Air Force review boards, seeking a
correction of the performance appraisals, the return of his security clearance and withdrawal of
federal recognition.18 The Board finds that his emotional condition did not arise out of and in the
course of his civilian federal employment.
Appellant also attributed his stress to administrative actions of the employing
establishment including, improper reassignment to the logistics officer position and the failure to
provide training. He also alleged that he should have been upgraded to a GS-12 position.
However, appellant did not establish by the submission of probative evidence a factual basis for
these allegations.19 Without factual evidence to substantiate error or abuse, the factors to which
appellant attributes his condition are not compensable.
CONCLUSION
The Board finds that appellant has not met his burden of proof of establishing that his
emotional condition arose out of the course of his civilian federal employment.

18

As noted in Cavness, supra note 16, no claim for disability under the Act was made by appellant during the
period in which these actions were taken.
19

Bobbie D. Daly, 53 ECAB 691 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PALO ALTO HEALTHCARE SYSTEM,
Palo Alto, CA, Employer
__________________________________________

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

Docket No. 19-1399
Issued: May 1, 2020

Case Submitted on the Record

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

JURISDICTION
On June 13, 2019 appellant, through counsel, filed a timely appeal from an April 3, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective August 9, 2018, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On October 26, 2015 appellant, then a 30-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on October 22, 2015 she injured her right knee when she reached
down to pick something up while in the performance of duty. On the reverse side of the claim
form, the employing establishment noted that appellant stopped work on the date of injury.
On December 2, 2015 OWCP accepted appellant’s claim for dislocation of the patella, right
knee. Appellant received continuation of pay from October 23 through December 6, 2015.
On March 18 and May 13, 2016 appellant underwent authorized right knee manipulation
under anesthesia and intraarticular injection. She also underwent authorized right knee
arthroscopic lateral release and medial patellofemoral ligament reconstruction on July 5, 2016.
On September 13, 2017 OWCP expanded the acceptance of appellant’s claim to include
recurrent dislocation of the patella, unspecified subluxation, and anklyosis of the right knee.
On September 25, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Bruce R. Huffer, a Board-certified orthopedic surgeon, for a report of the status of her accepted
employment injuries and work capacity.
In an October 16, 2017 medical report, Dr. Huffer discussed appellant’s factual and
medical history and detailed the findings of his physical examination. He advised that appellant
continued to have residuals of her accepted October 22, 2015 work injury. Dr. Huffer, however,
advised that she could return to work with restrictions that included: walking and standing no
more than 20 minutes; lifting, pushing, and pulling no more than 10 pounds; and no squatting or
kneeling. He noted that appellant could participate in vocational rehabilitation. In an October 17,
2017 work capacity evaluation (Form OWCP-5c), Dr. Huffer indicated that she could not perform
her usual job, but she could work eight hours a day with the same restrictions set forth in his
October 16, 2017 report.
On November 22, 2017 appellant began participating in an OWCP-sponsored vocational
rehabilitation program designed to return her to work.
On May 22, 2018 the employing establishment offered appellant a permanent full-time
modified nursing assistant position in the Nursing Rehabilitation Service, based on the temporary
work restrictions provided by Dr. Huffer.
On May 24 and June 11, 2018 appellant’s vocational rehabilitation counselor determined
that the modified nursing assistant position offered by the employing establishment appeared to
accommodate appellant’s current work limitations. The vocational rehabilitation counselor
indicated, however, that appellant was going to reject the job offer since she was close to finishing
2

her formal licensed vocational nursing (LVN) training by the end of July 2018 and thereafter hoped
to obtain her license within one month.
A memorandum of telephone call (Form CA-110) dated June 22, 2018 noted that the
employing establishment informed OWCP that the offered modified nursing assistant position was
still available. Also, in a letter dated June 22, 2018, OWCP advised appellant of its determination
that the modified nursing assistant position offered by the employing establishment was suitable
and in accordance with her medical limitations provided by Dr. Huffer in his October 16, 2017
report. It advised her that her wage-loss compensation and entitlement to a schedule award would
be terminated if she did not accept the modified nursing assistant position or provide good cause
for not doing so within 30 days.
In a letter dated July 5, 2018, appellant, through counsel, explained that she rejected the
job offer because her professional license was no longer active since she had not been working.
She maintained that she could not return to work unless her license was renewed.3
OWCP, in a July 25, 2018 letter, advised appellant that her reasons for refusing to accept
the modified nursing assistant position were unjustified. It advised her that her wage-loss
compensation and entitlement to a schedule award would be terminated if she did not accept the
position and report to the position within 15 days of the date of the letter.
In a Form CA-110 dated July 24, 2018, the employing establishment informed OWCP that
appellant had rejected the modified nursing assistant position. Additionally, OWCP noted in a
Form CA-110 dated August 8, 2018 that it had confirmed with a manager that a license was not
required for the offered position, which remained available.
By decision dated August 9, 2018, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits, effective that date, because she refused an offer of
suitable work pursuant to 5 U.S.C. § 8106(c)(2). It determined that the weight of the medical
evidence rested with the October 16, 2017 report of Dr. Huffer. OWCP advised that this decision
did not terminate her medical benefits.
In an August 13, 2018 e-mail to the employing establishment, appellant noted that during
an August 7, 2018 telephone conversation she informed the employing establishment that she did
not know where to report for the suitable job offer. She also noted that she had been informed that
she had refused the job offer and, thus, the job was no longer available. Appellant expressed her
enthusiasm to return to work.
On August 17, 2018 counsel, on behalf of appellant, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review regarding the August 9, 2018
decision. Subsequently, in an October 2018 letter, he requested that OWCP take immediate action
as appellant had returned to work based on the suitability determination, but was told by the
employing establishment that no work was available within her restrictions. Counsel maintained
3

In an August 9, 2018 letter, appellant’s vocational rehabilitation counselor informed OWCP that appellant
completed her LVN training on July 20, 2018 and that she was scheduled to take the LVN license examination on
August 22, 2018.

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that she was told that she could not work unless she was released to work without restrictions. He
contended that, if the employing establishment had failed to provide work to appellant after her
return to work, then she was entitled to immediate compensation.
In an October 11, 2018 e-mail, appellant informed the employing establishment that she
wished to return to her former certified nursing assistant position while she waited for employment
as an LVN.
By decision dated April 3, 2019, an OWCP hearing representative affirmed OWCP’s
August 9, 2018 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.4 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee is not entitled to compensation.5
To justify termination of compensation, OWCP must show that the work offered was
suitable, that the employee was informed of the consequences of refusal to accept such
employment, and that he or she was allowed a reasonable period to accept or reject the position or
submit evidence to provide reasons why the position is not suitable.6 Section 8106(c) of FECA (5
U.S.C. § 8106(c)(2)), will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.7
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.8 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.9

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005).
5

5 U.S.C. § 8106(c)(2).

6
R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4 (June 2013).
7

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a).

9

Id. at § 10.516.

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ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective August 9, 2018, because
she refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In support of her refusal to accept the offered position within 30 days of June 22, 2018, the
date that OWCP advised appellant that she had 30 days to accept the offered position or provide
justification for not accepting it, she contended that since she was not working she no longer had
the necessary license to perform the position. OWCP then gave her an additional 15 days to accept
and report to the offered position. Subsequently, on August 8, 2018 the employing establishment
informed OWCP that it had confirmed that a license was not required for the offered position and
the position remained available. They did not, however, afford appellant an opportunity to accept
and return to the position after determining it to be a suitable offer of employment. Instead, on the
next day, by decision dated August 9, 2018, OWCP terminated her wage-loss compensation and
entitlement to schedule award benefits, effective that date, because she refused an offer of suitable
work pursuant to 5 U.S.C. § 8106(c)(2). OWCP’s hearing representative, by decision dated
April 3, 2019, affirmed the termination of appellant’s compensation benefits. The Board finds that
OWCP prematurely invoked the penalty provision of 5 U.S.C. § 8106(c)(2), due to the defect noted
above, and thereby failed to discharge its burden of proof to support the termination of her
compensation benefits.10 Accordingly, the termination of appellant’s compensation benefits
effective August 9, 2018 is reversed.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective August 9, 2018, because
she refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

10

See generally, Manolo U. Meja, Docket No. 00-0759 (issued September 19, 2001).

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ORDER
IT IS HEREBY ORDERED THAT the April 3, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: May 1, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 10-1636
Issued: February 4, 2011

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 June 4, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 22, 2009 nonmerit decision denying his request for merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. The last merit decision of the Office was its August 13, 2009 decision
denying appellant’s traumatic injury claim. The Board lacks jurisdiction to review the merits of
this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

On appeal, appellant contends that the statement of his acting supervisor should be
sufficient to establish that he was injured in the performance of duty.
FACTUAL HISTORY
On October 22, 2008 appellant, a 47-year-old supervisory criminal investigator, filed a
traumatic injury claim alleging that he sustained bilateral inguinal hernias while lifting heavy
boxes during a work-related move. The Office originally received the claim as a simple,
uncontroverted case resulting in minimal or no time loss from work. Accordingly, the claim was
handled administratively to allow for payment up to $1,500.00; the merits of the claim were not
considered at that time.
Appellant submitted a May 4, 2009 report from Dr. Jose M. Perez, a Board-certified
surgeon, who diagnosed bilateral inguinal hernias. In October 2009, he first noticed two bulges
in his groin area that increased in size and caused pressure. The record also contains a May 19,
2009 request for authorization for surgery.
In a July 6, 2009 letter, the Office informed appellant that the evidence submitted was
insufficient to establish his claim. It advised him to provide additional information as to how the
claimed incident occurred, as well as a medical report containing a diagnosis, examination
findings and an opinion explaining how the diagnosed condition resulted from the claimed work
event.
In a July 27, 2009 statement, appellant provided details surrounding the claimed
October 21, 2008 incident. On the date in question, he was involved in moving the contents of
his office from Los Angeles to Long Beach, CA. While lifting the heaviest box, weighing
approximately 40 pounds, appellant felt a pull and a distinct tingling sensation down his left leg
and a slight bulge in his left groin.
Appellant submitted a May 12, 2009 form from his health insurance carrier approving an
inguinal hernia procedure. He also submitted a July 16, 2009 explanation of benefits form from
Anthem Blue Cross.
In a decision dated August 13, 2009, the Office denied appellant’s claim on the grounds
that the evidence failed to demonstrate that the claimed hernia condition resulted from the
established work-related incident.
On November 30, 2009 appellant requested reconsideration. He stated that his symptoms
began to present themselves slowly over time following the October 21, 2008 incident.
Appellant noted that he was providing a statement from Simon Porter, his acting group
supervisor, who was present when the incident occurred. In an October 22, 2010 statement,
Mr. Porter indicated that he was helping another employee load boxes into a government van in
Los Angeles, CA on October 21, 2008. He noticed appellant pushing a cart loaded with boxes.
Appellant, who was walking as if in pain, told Mr. Porter that he had sprained his groin while
moving boxes to his new office in Long Beach.
By decision dated December 22, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted did not warrant merit review.
2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.6
ANALYSIS
Appellant’s November 30, 2009 request for reconsideration did not allege or demonstrate
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted a statement from the
acting group supervisor describing his behavior and relating a comment made on the date of the
accepted incident. The Board notes that the Office accepted the October 21, 2008 incident. The
basis of the Office’s decision denying appellant’s claim was medical in nature. The supervisor’s
statement, which addressed the factual elements of the claim, was irrelevant to the issue of causal
relation.
On appeal, appellant contends that Mr. Porter’s statement is sufficient to establish that he
was injured in the performance of duty. The supervisor’s lay opinion as to appellant’s medical
condition is not relevant, as the Board has held that lay individuals are not competent to render a
medical opinion.7 The Board finds that Mr. Porter’s statement does not constitute relevant and

2

5 U.S.C. §§ 8101-8193. 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).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

7

Gloria J. McPherson, 51 ECAB 441 (2000).

3

pertinent new evidence not previously considered by the Office.8 Therefore, the Office properly
determined that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
CONCLUSION
The Board further finds that the Office properly refused to reopen appellant’s case for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2009 is affirmed.
Issued: February 4, 2011
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

8

See Susan A. Filkins, 57 ECAB 630 (2006).

4


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

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

Docket No. 08-1019
Issued: August 25, 2008

Case Submitted on the Record

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

JURISDICTION
On February 21, 2008 appellant filed a timely appeal from a December 10, 2007 decision
of the Office of Workers’ Compensation Programs, suspending his compensation benefits, and a
February 12, 2008 decision denying his 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 properly suspended appellant’s right to
compensation benefits effective December 10, 2007 on the grounds that he failed to attend a
directed medical examination; and (2) whether the Office properly denied appellant’s request for
reconsideration.
FACTUAL HISTORY
On February 23, 2001 appellant, then a 60-year-old housekeeping aid, filed a traumatic
injury claim alleging that he injured his back and left side when he fell off a ladder. The Office

accepted his claim for a spine compression fracture at L3. Appellant was placed on the periodic
compensation rolls for temporary disability as of April 9, 2001. He continued to be treated by
Dr. Ranjan S. Roy and Dr. David S. Jones, both neurosurgeons. Effective July 1, 2001, appellant
was removed from his federal position for cause because he failed to comply with employing
establishment regulations regarding leave requests.
On November 12, 2003 the Office referred appellant, together with a statement of
accepted facts and list of questions, to Dr. Surendrapal S. Mac, a Board-certified orthopedic
surgeon, for an examination and evaluation as to whether he had any remaining disability or
medical condition causally related to his February 23, 2001 compression fracture. On
December 5, 2003 Dr. Mac reviewed the medical history and provided findings on physical
examination. He stated that an x-ray taken that date revealed a healed compression fracture at
L3. Dr. Mac found that appellant’s accepted compression fracture was healed but he had some
remaining disability due to degenerative changes in the spine caused by the compression
fracture.
On December 1, 2004 and February 23, November 6 and December 6, 2006 the Office
requested that appellant provide updated medical reports from his treating physician. There was
no response to the letters.
On September 13, 2007 the Office advised appellant that he was to report to
Dr. William A. Somers, an orthopedic surgeon, on October 24, 2007 at 11:00 A.M., at the
address provided, for a medical examination to determine whether he had any remaining
disability or medical condition causally related to his February 23, 2001 compression fracture.
The Office advised appellant that if he failed to keep the appointment and did not provide an
acceptable reason for not attending, his benefits would be suspended pursuant to section 8123(d)
of the Federal Employees’ Compensation Act.1 On October 24, 2007 Dr. Somers’ office staff
advised the Office that appellant failed to keep the scheduled appointment.
On October 30, 2007 the Office advised appellant that it proposed to suspend his
compensation benefits pursuant to section 8123(d) of the Act for failure to attend the
examination scheduled with Dr. Somers for October 24, 2007, as directed in the September 13,
2007 Office letter. He was given 14 days to provide an explanation for his failure to attend the
scheduled appointment. There was no response.
By decision dated December 10, 2007, the Office finalized its suspension of appellant’s
compensation benefits.
On February 1, 2008 appellant requested reconsideration. He provided no additional
evidence or argument.
By decision dated February 12, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant further
merit review.

1

5 U.S.C. §§ 8101-8193.

2

LEGAL PRECEDENT – ISSUE 1
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.2 The determination of the need for an examination, the type of examination, the
choice of locale and the choice of medical examiners are matters within the province and
discretion of the Office.3 The Office’s federal regulation at section 10.320 provides that a
claimant must submit to examination by a qualified physician as often and at such times and
places as the Office considers reasonably necessary.4 Section 8123(d) of the Act and section
10.323 of the Office’s regulations provide that, if an employee refuses to submit to or obstructs a
directed medical examination, his or her right to compensation is suspended until the refusal or
obstruction ceases.5 Office procedures provide that, before the Office may invoke these
provisions, the employee is to be afforded a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.6 If good cause for the refusal or obstruction is
not established, entitlement to compensation is suspended in accordance with section 8123(d) of
the Act.7
ANALYSIS -- ISSUE 1
By letter dated September 13, 2007, the Office referred appellant to Dr. Somers for an
examination and evaluation as to whether he had any residual disability or medical condition
causally related to his February 23, 2001 employment injury. The Office advised him that the
examination was scheduled for October 24, 2007 at 11:00 A.M. and provided Dr. Somers’
address. It advised appellant that his compensation benefits would be suspended if he missed the
appointment and did not provide an acceptable reason for failing to attend. On October 24, 2007
Dr. Somers’ office staff advised the Office that appellant failed to appear for the scheduled
appointment. On October 30, 2007 the Office advised appellant that it proposed to suspend his
compensation benefits, pursuant to section 8123(d) of the Act, for failure to attend the
examination scheduled with Dr. Somers for October 24, 2007, as directed by the Office in its
September 13, 2007 letter. It gave him 14 days in which to provide an explanation for his failure
to attend the scheduled appointment. Appellant did not respond to the October 30, 2007 letter of
proposed suspension. He provided no explanation for his failure to attend the October 24, 2007
directed examination with Dr. Somers. Because appellant failed to attend the directed medical
examination and did not provide good cause for the failure within 14 days of the Office’s

2

5 U.S.C. § 8123.

3

See Lynn C. Huber, 54 ECAB 281 (2002).

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; see Alfred R. Anderson, 54 ECAB 179 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
7

Id.

3

October 30, 2007 notice of proposed suspension, the Office properly suspended his
compensation benefits as of December 10, 2007.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act8 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation. The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; or (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.9 When an application for review of the merits of a claim
does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.10
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the December 10, 2007 decision but provided no
evidence or legal argument in support of his request. Neither did he contend that the Office
erroneously applied or interpreted a specific point of law. Because appellant did not submit
arguments or evidence showing that the Office erroneously applied or interpreted a specific point
of law, advancing a relevant legal argument not previously considered or constituting relevant
and new pertinent evidence not considered previously by the Office, the Office properly denied
his request for reconsideration.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits
effective December 10, 2007 for failure to attend a directed medical examination. The Board
further finds that the Office did not abuse its discretion in denying appellant’s request for
reconsideration.

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.608(b).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 12, 2008 and December 10, 2007 are affirmed.
Issued: August 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Stevenson, AL, Employer
__________________________________________

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

Docket No. 10-2347
Issued: July 14, 2011

Case Submitted on the Record

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

JURISDICTION
On September 23, 2010 appellant filed a timely appeal from a September 2, 2010
schedule award decision of the Office of Workers’ Compensation Programs (OWCP). 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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than a two percent binaural hearing loss
causally related to his employment.
FACTUAL HISTORY
On April 8, 2010 appellant, then a retired 59-year-old laborer, filed an occupational
disease claim alleging that he sustained bilateral hearing loss. He was last exposed on
1

5 U.S.C. § 8101 et seq.

October 23, 2009. Appellant became aware of his condition and its relationship to his
employment on November 1, 2005.2 Statements and personnel records indicated that he was
initially hired by the employing establishment in 1975.
The employing establishment submitted health records, including the results of
audiometric testing. A March 3, 1976 audiogram exhibited the following decibel (dBA) losses at
500, 1,000, 2,000 and 3,000 Hertz (Hz): 15, 15, 5 and 25 for the right ear and 15, 10, 5 and 5 for
the left ear. At the same frequency levels, an October 4, 1993 employing establishment
audiogram showed dBA losses of 10, 5, 10 and 45 for the right ear and 10, 10, 5 and 15 for the
left ear while an October 23, 2009 exhibited dBA losses of 15, 10, 25 and 55 for the right ear and
10, 10, 5 and 50 for the left ear.
In a June 16, 2010 report, an audiologist related that appellant was regularly exposed to
noise averaging 75 dBA based on workplace noise surveys. She noted that hearing protection
was required in designated areas where noise surpassed 85 dBA. The audiologist concluded that
the October 23, 2009 audiogram revealed no impairment.
A June 25, 2010 statement of accepted facts advised that appellant was routinely exposed
to noise between 60 and 91 dBA that was generated by turbines, boiler feed pumps, steam leaks,
vacuum equipment, trucks and other equipment.
OWCP referred appellant for a second opinion examination to Dr. Joseph A. Motto, a
Board-certified otolaryngologist. In a July 14, 2010 report, Dr. Motto noted that appellant was
first hired by the employing establishment in 1975. On examination, he observed no physical
abnormalities. An audiogram conducted on July 14, 2010 showed dBA losses of 10, 20, 20 and
55 for the right ear and 15, 15, 20 and 60 for the left ear. Dr. Motto opined that, while appellant
had a high-frequency hearing impairment prior to his employment, audiometric data suggested
that his subsequent hearing loss exceeded what could normally be attributed to presbycusis. He
diagnosed bilateral sensorineural hearing loss, concluded that appellant’s occupational noise
exposure caused the condition and recommended hearing aids.
On August 3, 2010 OWCP’s medical adviser agreed with Dr. Motto that appellant’s
binaural sensorineural hearing loss was caused by occupational noise exposure and authorized
hearing aids. Applying the standard provided by the American Medical Association, Guides to
the Evaluation of Permanent Impairment3 (hereinafter A.M.A., Guides) to the July 14, 2010
audiogram, he calculated that appellant sustained a two percent binaural hearing loss. OWCP’s
medical adviser listed July 14, 2010 as the date of maximum medical improvement.
By decision dated August 5, 2010, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss and authorized hearing aids. On September 2, 2010 it granted a
schedule award for two percent binaural hearing loss for the period July 14 to August 10, 2010.

2

Appellant filed a previous hearing loss claim in 2002. OWCP did not issue a schedule award in this claim.
OWCP File No. xxxxxx114.
3

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

2

LEGAL PRECEDENT
FECA’s schedule award provision and its implementing regulations4 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.5 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. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA 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. Binaural loss is
determined by first calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.7
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by OWCP.8
ANALYSIS
Appellant filed a claim for binaural hearing loss and OWCP developed the matter by
referring him to Dr. Motto. After conducting a thorough examination and reviewing the
audiometric data, Dr. Motto diagnosed bilateral sensorineural hearing loss causally related to

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(13).

6

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

7

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

8

Holloway, supra note 6 at 325.

3

occupational noise exposure. OWCP’s medical adviser concurred with these findings and
calculated that appellant sustained a two percent binaural hearing loss.
On appeal, appellant contends that his hearing impairment was more than two percent
and asked for another second opinion examination by a different physician. Applying the
A.M.A., Guides standard to the July 14, 2010 audiogram, his right ear recorded losses of 10, 20,
20 and 55 dBA. The total loss was 105 dBA. When divided by four, the result was an average
hearing loss of 26.25 dBA. The average hearing of 26.25 dBA was reduced by the fence of 25
dBA to 1.25 dBA. This figure was then multiplied by the established factor of 1.5, yielding
1.875 percent monaural impairment of the right ear. At the same frequency levels, appellant’s
left ear recorded losses of 15, 15, 20 and 60 dBA at 500, 1,000, 2,000 and 3,000 Hz,
respectively. The total loss was 110 dBA. When divided by four, the result was an average
hearing loss of 27.5 dBA. The average hearing of 27.5 dBA was reduced by the fence of 25 dBA
to equal 2.5 dBA. This figure was then multiplied by the established factor of 1.5, yielding 3.75
percent monaural impairment of the left ear. In calculating binaural hearing loss, the lesser
monaural loss of 1.875 percent for the right ear is first multiplied by five to equal 9.375. This
amount is added to the greater monaural loss of 3.75 percent for the left ear to equal 13.125,
which is then divided by six to arrive at 2.1875 percent binaural hearing loss. This was properly
rounded down to two percent by OWCP.9 Accordingly, the Board finds that appellant did not
sustain more than a binaural hearing loss of two percent.
Appellant further argues that his schedule award should have commenced several years
before July 14, 2010 and he was entitled to hearing devices for future use. When loss of use of a
scheduled member or function of the body is less than 100 percent, the amount of compensation
paid is in proportion to the percentage of loss of use.10 Under FECA, the maximum award for
binaural hearing loss is 200 weeks of compensation. Since appellant’s loss was two percent, he
was entitled to two percent of 200 weeks of compensation, which amounted to 4 weeks of
compensation. His schedule award ran from July 14, 2010, the date of maximum medical
improvement, through August 10, 2010, which equates to four weeks. Regarding the time at
which a schedule award begins to run, it is well established that the period commences on the
date that the employee reaches maximum medical improvement from the residuals of the
employment injury. The determination of whether maximum medical improvement has been
reached is based on the medical evidence of record. The date is usually the date of the medical
examination which determined the extent of the impairment.11 Here, the date of the examination
on which the schedule award was based is Dr. Motto’s July 14, 2010 examination. OWCP
properly determined that appellant was entitled to a schedule award for two percent binaural
hearing loss for the period July 14 to August 10, 2010. The Board notes that appellant is also
entitled to appropriate medical benefits, such as hearing aids, from OWCP for his accepted
condition.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)
(January 2010) (fractions should be rounded down from .49 or up from .50).
10

5 U.S.C. § 8107(c)(19).

11

See supra note 8; Richard Larry Enders, 48 ECAB 184 (1996). See also P.C., 58 ECAB 539 (2007).

4

Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
increased impairment.
CONCLUSION
The Board finds that appellant failed to establish that he sustained more than a two
percent binaural hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2010 schedule award decision of
the Office of Workers’ Compensation Programs is affirmed.
Issued: July 14, 2011
Washington, DC

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

Michael E. Groom, 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
__________________________________________
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Cleveland, OH, Employer
)
__________________________________________ )
D.V., Appellant

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

Docket No. 19-0499
Issued: August 15, 2019

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 January 8, 2019 appellant filed a timely appeal from a December 18, 2018 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 more than seven
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On April 18, 2013 appellant, then a 39-year-old Deputy U.S. Marshal, filed a notice of
traumatic injury (Form CA-1) alleging that on April 15, 2013 he ruptured his right Achilles tendon
while playing basketball, as part of an approved physical fitness regimen, while in the performance
1

5 U.S.C. § 8101 et seq.

of duty. OWCP accepted the claim for a ruptured right Achilles tendon. On April 17, 2013
appellant underwent an approved surgical repair of the accepted condition. He returned to fulltime limited-duty work on June 3, 2013, and full-time full-duty work on July 29, 2013.
On May 25, 2018 appellant filed a claim for a schedule award (Form CA-7).
On June 4, 2018 OWCP referred appellant to Dr. Kimberly Togliatti-Trickett, Boardcertified in physical medicine and rehabilitation, for a second opinion evaluation pursuant to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2
In a July 20, 2018 report, Dr. Togliatti-Trickett noted appellant’s medical and surgical
history, reported her findings upon physical examination, and provided an impairment rating. She
explained that appellant’s permanent impairment rating was based on the diagnosis of a ruptured
right Achilles tendon and surgical repair. Dr. Togliatti-Trickett found decreased girth
measurement of the right calf compared to the left calf and decreased speed, strength, and mobility
of approximately 10 percent. Utilizing the diagnosis-based impairment (DBI) methodology she
referred to Table 16-2 on page 502 of the A.M.A., Guides3 and determined that appellant had one
percent permanent impairment of his right lower extremity. Dr. Togliatti-Trickett referred to Table
16-10 on page 530 and noted that this corresponded to one percent whole person impairment. She
advised that appellant reached maximum medical improvement (MMI) on July 29, 2013.
On August 8, 2018 OWCP forwarded Dr. Togliatti-Trickett’s July 20, 2018 report to
Dr. Kevin Kuhn, a Board-certified orthopedic surgeon serving as an OWCP district medical
adviser (DMA).
In an August 16, 2018 report, the DMA explained that appellant had two percent permanent
impairment, pursuant to the DBI method set forth at A.M.A., Guides, Table 16-2 on page 501,
based upon his diagnosis of ruptured Achilles tendon. He noted that Dr. Togliatti-Trickett had not
provided three range of motion (ROM) measurements.
On August 21, 2018 OWCP requested an addendum from Dr. Togliatti-Trickett which
provided separate calculations using the ROM and DBI methodologies.
In a September 20, 2018 addendum, Dr. Togliatti-Trickett increased her DBI computation
from one percent to five percent. For ROM she indicated that appellant had a right lower extremity
impairment rating of seven percent. Dr. Togliatti-Trickett did not provide measurements or
explain how she arrived at her calculations, other than to refer to Figure 16-12 on page 534 of the
A.M.A., Guides.
On October 1, 2018 OWCP provided Dr. Togliatti-Trickett’s addendum reports to the
DMA. In an October 9, 2018 response, he explained that Dr. Togliatti-Trickett had not provided
sufficient information to support the increase in the DBI impairment rating to five percent. The
DMA referred to the A.M.A., Guides and indicated that the DBI rating of appellant’s right lower
2

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

3

Id.

2

extremity was two percent. He explained that he did not agree with Dr. Togliatti-Trickett’s
findings because the clinical documentation provided did not support a default percentage of 5
percent, as her notes reported 10 percent decrease in strength and objective ROM compared to the
contralateral side, and the default should be 2 percent pursuant to Table 16-2 on page 501. The
DMA further noted that Dr. Togliatti-Trickett’s clinical notes included three sets of measurements
for ROM and referred to the A.M.A., Guides at Table 16-2 on page 501, Table 16-22 on page 549,
Table 16-25 on page 550, and Table 16-17 on page 545. He explained that the ROM method also
resulted in a finding of two percent right lower extremity permanent impairment.
In an October 16, 2018 report, Dr. Matthew E. Levy, a Board-certified orthopedic surgeon,
determined that appellant had 13 percent permanent impairment of the right lower extremity. He
referred to Table 16-5 on page 515 of the A.M.A., Guides and noted that appellant’s Achilles’
tendon injury “results in a class 1 problem” based on the foot and ankle regional grid. Dr. Levy
explained that functional history resulted in a grade 1 modifier (GMFH) based on gait
derangement. He found 4.5 centimeters of calf atrophy and indicated that appellant had a grade
IV physical examination modifier (GMPE) based on calf atrophy. Dr. Levy indicated that the
modifier based on clinical studies (GMCS) was not available due to an absence of imaging. He
explained that “the grade of lower extremity impairment is moved two spots to the right resulting
in 13 [percent] lower extremity impairment.” Dr. Levy referred to Table 16.1 on page 495 and
explained that this resulted in five percent whole person impairment.
On November 16, 2018 OWCP referred Dr. Levy’s October 16, 2018 report to the DMA
and requested that he update the permanent impairment rating for appellant’s right lower extremity
based upon the physical examination findings of Dr. Levy.
In a November 21, 2018 report, the DMA noted that he reviewed the new report from
Dr. Levy and that he disagreed with his impairment rating. He utilized the A.M.A., Guides and
explained that appellant had a normal gait, 4.5 centimeters of atrophy, and clinical studies
conforming a mild pathology. The DMA also noted that appellant’s motion deficits had improved
and therefore based on Table 16-22 on page 549 of the A.M.A., Guides would be rated as mild.
He utilized the DBI method and explained that the default rating would be five percent based on
Table 16-2 on page 501. The DMA also noted that for an Achilles tendon rupture,4 appellant had
a class 1 impairment for a mild ROM finding and a default impairment rating of five percent. He
referred to Table 16-6 on page 516 and explained that appellant had a GMFH of 0 as there was no
gait derangement. The DMA referred to Table 16-7 on page 517 and explained that for severe
atrophy appellant had a GMPE of a grade 4. He referred to Table 16-8 on page 519 and found that
appellant had a GMCS of grade 1. The DMA utilized the net adjustment formula and determined

4
While the DMA indicated left Achilles tendon rupture, this appears to be a typographical error, as he indicates the
claim is accepted for a right Achilles tendon rupture in the initial paragraph of his report.

3

that it yielded an adjustment of 1 (for a grade E). He found that this resulted in seven percent right
lower extremity impairment. The DMA determined that appellant reached MMI on July 20, 2018.
On December 18, 2018 OWCP granted appellant a schedule award for seven percent
permanent impairment of the right lower extremity. The award covered a period of 20.16 weeks
from July 20 to December 8, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulation,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health
(ICF).9 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX),
which is then adjusted by GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.12

5

See supra note 1.

6

20 C.F.R. § 10.404.

7

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
8

See J.G., Docket No. 19-0369 (issued June 11, 2019); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
9

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 521.

12

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

4

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
OWCP referred appellant for a second opinion evaluation with Dr. Togliatti-Trickett. In
reports dated July 20 and September 20, 2018, Dr. Togliatti-Trickett found that appellant had five
percent permanent impairment of the right lower extremity. These reports do not support a finding
of more than seven percent permanent impairment of the right lower extremity. While
Dr. Togliatti-Trickett also related that appellant had one percent whole person impairment, a whole
person impairment rating is of no probative value as a whole person permanent impairment rating
is not permitted under FECA.14
In support of his claim, appellant submitted an October 16, 2018 report from Dr. Levy,
who determined that appellant had 13 percent permanent impairment of the right lower extremity.
Dr. Levy referred to Table 16-5 on page 515 of the A.M.A., Guides, and determined that appellant
had a “class 1 problem” based on the foot and ankle regional grid. He selected a GMPE of 1 based
on gait derangement. However, the basis for this grade modifier is unclear as Dr. Levy indicated
that appellant “is a healthy fit appearing gentleman with a normal gait pattern.” He indicated that
the GMCS was not available due to an absence of imaging. Medical evidence of record however
indicated that clinical studies revealed mild pathology. As Dr. Levy’s report was not based on
accurate medical findings, his report was insufficient to establish appellant’s permanent
impairment of the right lower extremity.15 While Dr. Levy also provided a whole person
permanent impairment, as previously explained, a whole person permanent impairment rating is
not permitted under FECA.16
Thereafter OWCP pursuant to its procedures routed the medical reports of record to the
DMA, Dr. Kuhn for evaluation of appellant’s right lower extremity permanent impairment.17
In a November 21, 2018 report, the DMA properly applied the A.M.A., Guides to
Dr. Levy’s findings. He explained that gait derangement could not be utilized as a modifier, as
appellant’s gait was normal. The DMA noted that the clinical studies of record confirmed a mild
pathology, however appellant’s range of motion deficits had improved compared to previous
13

See supra note 7 at Chapter 2.808.6(f) (March 2017). See J.J., Docket 18-1615 (issued March 5, 2019).

14

E.R., Docket No. 18-1646 (issued May 17, 2019); Marilyn S. Freeland, 57 ECAB 607 (2006).

15

F.T., Docket No. 16-1236 (issued March 12, 2018).

16
17

Supra note 14.
Supra note 13.

5

documented examinations. He utilized the net adjustment formula and determined that appellant
had a seven percent right lower extremity impairment. The Board finds that the DMA accurately
summarized the relevant medical evidence, provided detailed findings on examination, and
reached conclusions about appellant’s condition which comported with his findings, and with the
appropriate tables of the A.M.A., Guides.18 His report therefore carries the weight that appellant
has seven percent permanent impairment of the right lower extremity and constitutes the weight
of the medical evidence.19
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 employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2019
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

18

J.M., Docket No. 18-1387 (issued February 1, 2019).

19

F.T., supra note 15.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greenville, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1406
Issued: January 14, 2010

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 3, 2009 appellant filed a timely appeal from a January 12, 2009 decision of the
Office of Workers’ Compensation Programs denying her request for a hearing. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for a hearing.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision dated November 4,
2008, the Board affirmed a December 19, 2007 decision finding an overpayment of
compensation in the amount of $8,626.72 for the period October 6, 2005 to June 10, 2006 as she
received a schedule award following termination of her compensation.1 The law and the facts of
the case as set forth in the prior decision are incorporated by reference.
1

Docket No. 08-732 (issued November 4, 2008).

In a December 3, 2008 demand letter, the Office advised appellant that the $8,626.72
overpayment remained outstanding. It afforded her 30 days to make arrangements to repay the
debt or it would begin to charge interest.
In a letter dated December 26, 2008 and postmarked December 27, 2008, appellant
requested a prerecoupment hearing, asserting that she was not obligated to repay the debt.
Appellant submitted an overpayment recovery questionnaire and supporting financial documents.
By decision dated January 12, 2009, the Office denied appellant’s request for a hearing.
It found that the Board previously issued a decision dated November 4, 2008 on the issue of the
overpayment. The Office noted that decisions of the Board are final and the Office’s Branch of
Hearings and Review does not have jurisdiction to review decisions of the Board.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary … is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on [her] claim
before a representative of the Secretary.”2
The Act provides the Office with original jurisdiction in the processing of compensation
claims and section 8124(a) provides the Office with the duty and authority to issue an initial
decision on an employee’s claim for compensation.3 Once an initial decision is made in a
compensation case, the claimant’s rights arise by which the claimant may seek further review of
her claim: the right to a hearing before the Office, the right to reconsideration before the Office
or an appeal to the Board. The Board has clarified that the Office does not have the discretionary
authority to grant a request for hearing immediately following a Board decision. The Office’s
Branch of Hearings and Review may not assume jurisdiction in the claims process absent a final
adverse decision by the Director.4 Following the Board’s review of an Office decision, there is
no final decision of the Office left unreviewed over which the Branch of Hearings and Review
can assume jurisdiction to exercise its discretionary appellate authority.5
ANALYSIS
Following the issuance of the Office’s December 19, 2007 decision finding an
overpayment of compensation, appellant exercised her appellate rights by requesting an appeal to
the Board. The Board reviewed the case and issued its final decision on this claim on
November 4, 2008 in Docket No. 08-732. The Office did not subsequently issue a final decision.
On December 27, 2008 appellant requested an oral hearing before the Office’s Branch of
Hearings and Review. The Board has held that, following its review of an Office decision, a
2

5 U.S.C. § 8124(b)(1).

3

Id. at § 8124(a).

4

Patricia G. Aiken, 57 ECAB 441 (2006); Eileen A. Nelson, 46 ECAB 377 (1994).

5

Robert N. Thomas, 51 ECAB 180 (1999).

2

claimant does not have the right under 5 U.S.C. § 8124(b)(1) to request an oral hearing in the
absence of a final Office decision.6 In the instant case, appellant had no right to request an oral
hearing following the issuance of the Board’s November 4, 2008 decision. There is no final
Office decision left unreviewed over which the Office’s Branch of Hearings and Review could
assume jurisdiction to exercise its discretionary appellate authority.7 Therefore, the Board finds
that the Office properly denied appellant’s request for a hearing on January 12, 2009.8
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2009 is affirmed.
Issued: January 14, 2010
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

Id.

7

Id. See also Eileen A. Nelson, supra note 4.

8

Robert N. Thomas, supra note 6.

3