United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hermitage, PA, Employer
__________________________________________

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

Docket No. 18-0144
Issued: June 8, 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 October 26, 2017 appellant, through counsel, filed a timely appeal from an August 22,
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 the claim.3

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
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its August 22, 2017 decision. The
Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final
decision. 20 C.F.R. § 501.2(c)(1). Therefore, the Board is precluded from reviewing evidence not before OWCP at
the time of the August 22, 2017 decision for the first time on appeal. Id.

ISSUE
The issue is whether appellant has established a recurrence of total disability commencing
August 5, 2016 causally related to her accepted June 26, 2015 employment injury.
FACTUAL HISTORY
On June 26, 2015 appellant, then a 41-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she was injured when she tripped and fell on
a curb while in the performance of her federal employment duties. OWCP accepted the claim for
left ankle sprain and abrasion or friction of face, neck and scalp without infection. Appellant
stopped work on June 26, 2015 and received intermittent wage-loss compensation on the
supplemental rolls from August 11, 2015 through June 24, 2016.4
On June 21, 2016 Dr. Alicia A. Baker, an osteopath and Board-certified family
practitioner, indicated that appellant’s left ankle condition had resolved and that she could return
to work without restrictions.5 She held appellant off work due to a nonwork-related crushing injury
to the right index finger appellant experienced while at home on June 12, 2016. Appellant returned
to work on July 18, 2016. She resigned from the employing establishment on August 5, 2016.
On August 12, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging a
recurrence of disability commencing August 5, 2016. In an August 15, 2016 letter, she stated that
she returned to work on July 18, 2016. Appellant indicated that her left ankle had some swelling
with progressive inability to bear weight after July 22, 2016, when she was instructed to deliver
the mail without assists from her trainer vehicle. The left ankle symptoms recurred on July 23,
2016, after she had loaded her vehicle and delivered mail to cluster boxes; on July 27, 2016, after
she spent two hours casing mail; on July 30, 2016, after she delivered mail for approximately two
hours; and on August 5, 2016, after she cased mail for approximately three hours and loaded and
delivered the mail. Appellant alleged that she resigned from her position on August 5, 2016 due
to her left ankle injury.
In an undated statement received August 25, 2016, appellant’s manager controverted the
recurrence claim.6 He indicated that appellant was given a predisciplinary interview on July 15,
2016 for failing to be in regular attendance from June 21 to July 15, 2016. The manager further
indicated that during the period July 18 through August 3, 2016, appellant worked 46.25 hours and
always had assistance. On August 4, 2016 a second performance disciplinary interview took place.
Appellant was provided a rural carrier associate for both August 4 and 5, 2016 to train and work
with her all day. She was also informed that she would be on her own for the first time on
4

Appellant worked once a week, usually for eight hours, on Saturdays. She had only been employed 13 days before
her injury.
5
Dr. Baker stated that the magnetic resonance imaging (MRI) scan of the ankle was reported as normal. While the
electromyogram (EMG) was positive for neuropathy, Dr. Baker indicated that appellant denied any neuropathy-type
symptoms. She further indicated that the EMG did not show any evidence of nerve damage which would affect the
ankle strength.
6

The signature of appellant’s manager is illegible.

2

August 6, 2016. The manager denied that appellant mentioned that she had a recurrence of her
previous injury when she resigned on August 5, 2016.
On August 26, 2016 OWCP received an August 10, 2016 report from Dr. Richard
Deerhake, a Board-certified orthopedic surgeon and OWCP referral physician. Dr. Deerhake
reviewed the medical record and the statement of accepted facts, and reported examination
findings. He opined that appellant’s conditions related to the head and neck due to the work injury
had resolved. Dr. Deerhake indicated that appellant continued to have left ankle pain over the
anterior talofibular ligament. He diagnosed ankle sprain and anterior talofibular ligament sprain
in the left ankle and recommended that she consult with a foot and ankle specialist to determine
the appropriate care. Dr. Deerhake opined that appellant was able to work with restrictions. A
completed work capacity evaluation (OWCP-5c) was provided.
By development letter dated September 1, 2016, OWCP advised appellant that, as she had
returned to work on July 18, 2016 in a full-time capacity and worked until August 5, 2016, it
appeared that she was claiming disability due to a material change/worsening of her accepted
work-related conditions. It informed her of the evidence needed to establish her claim, including
a comprehensive, narrative medical report from her treating physician which contained a medical
explanation as to the relationship between her disability and her original injury. Appellant was
afforded 30 days to submit additional evidence and respond to its questionnaire.
On October 3, 2016 OWCP received copies of evidence previously of record. In a June 27,
2016 letter, appellant noted that she was placed in a walking cast three different times since her
June 26, 2015 work injury. She also indicated that she fell on June 16, 2016 when her left ankle
twisted inward.
Appellant also submitted additional claims for compensation (Form CA-7) for wage loss
for the period August 6, 2016 and continuing.
In an October 11, 2016 letter, OWCP again advised appellant of the evidence needed to
support her claim for recurrence. Appellant was afforded 30 days to submit the requested
information.
OWCP received additional claims for compensation (Form CA-7) for wage loss effective
October 1, 2016, and continuing.7 No new evidence was received.
By decision dated November 23, 2016, OWCP denied appellant’s recurrence claim
commencing August 5, 2016. It found that the factual and medical evidence of record failed to
show that she suffered a recurrence of disability. OWCP noted that, while Dr. Deerhake had
indicated in his second opinion report that appellant had swelling above the ankles, it was not clear
if the reported swelling was from new occupational factors or a residual of the accepted work
trauma. Appellant was advised that she could file an occupational disease claim (Form CA-2) if

7
In an October 25, 2016 letter, OWCP advised appellant of the evidence needed to establish disability during the
period claimed and afforded her 30 days to submit the requested evidence.

3

she felt that she suffered a new medical condition or an aggravation of preexisting medical
condition due to new occupational work factors.
On November 28, 2016 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative, which was held on June 8, 2017. During the hearing, appellant
testified that she was released to work on approximately June 21, 2016 by Dr. Baker, but returned
to work in July 18, 2016 because of some unrelated health issues. Appellant testified that in
July 2016 and around Christmas time, she fell in her home when her left ankle gave out.
Counsel asserted that on November 14, 2016 he had requested to have the acceptance of
the claim expanded to include a left anterior tibiofibular ligament sprain based on Dr. Deerhake’s
second opinion report.8 He requested that the record be held open for 30 days to allow for the
submission of additional supporting evidence that the fall at home was related to the June 26, 2015
work injury.
In a November 22, 2016 report, Dr. Timothy Perschke, a podiatrist, noted the history of
appellant’s June 26, 2015 work injury and that she wore a boot cast and attended physical therapy
for two months. He indicated that she fell again in December 2015 and reinjured her left ankle.
Appellant again wore a boot cast for treatment. Dr. Perschkle indicated that appellant was no
longer working as a mail carrier due to lupus. He provided a diagnosis of pain in left ankle and
joints of left foot and sprain of tibiofibular ligament of left ankle.
In a May 16, 2017 note, Dr. Barker indicated that appellant reached maximum medical
improvement.
By decision dated August 22, 2017, an OWCP hearing representative affirmed the
November 23, 2016 decision. She found that appellant had an intervening injury to her left ankle
at home in July 2016 and that the case record was void of medical opinion relating the fall to the
June 26, 2015 work injury.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition
which has resulted from a previous injury or illness without an intervening injury or new exposure
to the work environment that caused the illness.9
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is
8

The record is devoid of any such request.

9
20 C.F.R. § 10.5(y); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).

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causally related to the employment injury and supports this conclusion with sound medical
reasoning.10
ANALYSIS
The Board finds that appellant has failed to establish a recurrence of total disability
commencing on August 5, 2016 causally related to the accepted June 26, 2015 employment injury.
OWCP accepted that appellant sustained a left ankle sprain and an abrasion or friction of
face, neck, and scalp without infection as a result of a June 26, 2015 employment injury. Dr. Baker
released appellant from medical care for the accepted work-related medical conditions on
June 21, 2016. However, he kept appellant out of work for a nonwork-related health issue.
Appellant returned to work on July 18, 2016. She advised that she fell at her home on June 16,
2016 and in July 2016.11 Appellant stopped work and resigned on August 5, 2016 alleging that
she was unable to perform the job due to her left ankle condition. On August 12, 2016 she filed a
recurrence claim alleging wage loss from work due to a change or worsening of her accepted workrelated left ankle condition.
The record reflects that after her work release from Dr. Baker on June 21, 2016, appellant
had an intervening injury when she fell at home. In her June 27, 2016 letter, appellant stated that
she fell at home on June 16, 2016 when her left ankle twisted. In her testimony before OWCP’s
hearing representative, appellant stated that she fell at home in July 2016.
Dr. Baker had released appellant from care with no restrictions from her work-related left
ankle sprain on June 21, 2016. He held appellant off work due to a nonwork-related finger crush
injury she suffered at home on June 12, 2016. Appellant then suffered another fall in
June/July 2016, indicating that her left ankle had given out while at home. There is no medical
opinion relating appellant’s June/July 2016 fall at home to her work-related ankle sprain, which
Dr. Baker found resolved on June 21, 2016. Thus, the June/July 2016 fall at home is an
intervening event such that the evidence does not support a finding that appellant’s current
condition is a spontaneous recurrence of her previous left ankle condition.12
In his August 10, 2016 report, Dr. Deerhake provided new diagnoses of ankle sprain and
anterior talofibular ligament sprain in the left ankle. Likewise, in his November 22, 2016 report,
Dr. Perschke provided a diagnosis of pain in left ankle and joints of left foot and sprain of
tibiofibular ligament of left ankle. However, the Board notes that neither Dr. Deerhake nor
Dr. Perschkle provided an opinion as to the cause of appellant’s diagnosed conditions. The Board
has held that 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.13 Furthermore,
10

Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999).

11

It is unclear whether the falls were separate incidents.

12

See supra note 9.

13
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

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Dr. Perschkle does not appear to have an accurate medical history as he did not report that appellant
had a fall at home in June/July 2016. A medical opinion should reflect a correct history and offer
a medically sound explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions.14 Therefore, the reports from
Dr. Deerhake and Dr. Perschkle are insufficient to establish appellant’s recurrence claim.
Given the intervening June/July 2016 fall at home, this recurrence claim cannot be
factually or medically established based on the claim form filed. OWCP previously advised
appellant that she could file an occupational disease claim (Form CA-2) if she felt that she suffered
a new medical condition or an aggravation of preexisting medical condition due to new
occupational work factors.15
On appeal counsel contends that OWCP should have expanded the acceptance of the claim
based on Dr. Deerhake’s second opinion report prior to issuing its recurrence decision. However,
as discussed above, the medical evidence of record does not support that the accepted June 26,
2015 employment injury caused any new diagnoses.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
recurrence of disability commencing August 5, 2016 due to her accepted June 26, 2015
employment injury.

14

See J.M., Docket No. 17-1002 (issued August 22, 2017).

15
S.S., Docket No. 16-0675 (issued July 15, 2016); Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial
Development of Claims, Chapter 2.800.7b(1) (June 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS AFFAIRS
MEDICAL CENTER, Coatesville, PA, Employer
__________________________________________

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

Docket No. 19-1340
Issued: February 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 4, 2019 appellant, through counsel, filed a timely appeal from a May 7, 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.3

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.

3
The Board notes that following the May 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish left shoulder and
cervical conditions causally related to the accepted October 15, 2018 employment incident.
FACTUAL HISTORY
On October 16, 2018 appellant, then a 60-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on October 15, 2018 he slipped and fell, injuring his left
shoulder while in the performance of duty. He recounted that he was transporting dishes to the
dish washing machine when he slipped on a soapy, wet floor and landed on his left side.
A September 27, 2018 left shoulder magnetic resonance imaging (MRI) scan revealed
Type 1 acromion without a subacromial spur, mild osteoarthritis of the acromioclavicular (AC)
joint, full-thickness tear involving nearly the entire width of the supraspinatus, and diffuse tear of
the glenoid labrum with a cluster of paralabral cysts. A September 27, 2018 cervical spine MRI
scan revealed degenerative discogenic disease, most pronounced at C4-5 and C5-6, interval
progression at C4-5 with moderate spinal and neural foramina narrowing, and facet osteoarthritis
at C2-3 and C3-4 with left neuroforamina narrowing.
In an October 18, 2018 report, Dr. Scott Ritterman, a Board-certified orthopedic surgeon,
described appellant’s complaints of left shoulder pain since 2016. He related that approximately
two days ago appellant had a slip and fall injury at work and landed on his left shoulder.
Dr. Ritterman reported that the “date of onset” was “two years, acute on chronic pain.”
Examination of appellant’s left shoulder revealed tenderness anteriorly at the biceps tendon and
no active abduction or forward elevation on range of motion testing. Dr. Ritterman diagnosed fullthickness rotator cuff tear with acute injury from fall. He completed a work status note indicating
that appellant should be out of work until October 22, 2018.
Dr. Glenn E. Lipton, a Board-certified orthopedic surgeon, noted a date of onset in his
October 22, 2018 report of “October 16, 2018 after being injured at work.” Upon examination of
appellant’s left shoulder, he observed direct tenderness at the insertion point of appellant’s left
rotator cuff tendon, tenderness anteriorly over the coracocromial arch, and focal tenderness at the
AC joint. Examination of appellant’s cervical spine showed decreased range of motion.
Dr. Lipton discussed appellant’s diagnostic testing results and diagnosed full thickness rotator cuff
tear, rotator syndrome, labral tear, possible biceps tear, AC joint osteoarthritis, and cervicalgia.
He completed a work status note indicating that appellant could return to work with restrictions.
P.O., a human resources specialist for the employing establishment, controverted
appellant’s claim. In an October 30, 2018 letter, she alleged that appellant injured his shoulder
prior to the claimed October 15, 2018 work incident.
In a November 8, 2018 development letter, OWCP informed appellant that his claim
initially appeared to be a minor injury and was therefore administratively approved for a payment
of a limited amount of medical expenses. It reported that the claim was now being reopened for
formal consideration and that additional factual and medical evidence was necessary to establish
his claim. OWCP requested that appellant respond to an attached development questionnaire and
provide medical evidence to establish that he sustained a diagnosed condition as a result of the

2

alleged incident. It afforded him 30 days to submit the necessary factual information and medical
evidence.
Appellant submitted hospital records dated October 15 and 29, 2018 and a document titled
“Problem Lists,” which included his various medical conditions. He also submitted a series of
progress notes from the employing establishment health unit dated August 7 to October 1, 2018,
which indicated that he was treated for left shoulder mild arthritis, mild left shoulder impingement,
severe facet osteoarthritis at C2-3 and C3-4, and cervical degenerative disc disease.
A December 9, 2016 lumbar spine MRI scan showed multilevel degenerative discogenic
disease, facet osteoarthritis, and prominent epidural fat, resulting in multilevel spinal canal
narrowing. An August 8, 2018 left shoulder MRI scan demonstrated mild osteoarthritis of the AC
joint. A September 7, 2018 cervical spine MRI scan revealed moderate degenerative discogenic
disease at C5 and C6-7 and multilevel left facet osteoarthritis. An October 11, 2018 computerized
tomography (CT) scan of appellant’s abdomen showed no evidence of acute abnormality in the
abdomen or pelvis.
In an October 15, 2018 employing establishment health unit progress note, Dr. Dennis L.
Iaccarino, an internist, recounted that appellant complained of left shoulder pain after he slipped
and fell down at work. He noted that appellant did not move his left upper extremity during
examination. Dr. Iaccarino assessed a “fall, left upper arm/shoulder injury.”
An October 16, 2018 progress note by Dr. David Reyes, a Board-certified family
physician, indicated that appellant was seen for a follow-up examination for left shoulder pain
after a fall at work yesterday.
In a November 21, 2018 cervical spine MRI scan report, Dr. Amit Verma, a Board-certified
neurologist, noted no substantial changes of the cervical spine as compared to the September 27,
2018 MRI scan.
Appellant submitted a November 14, 2018 statement in which he described in detail how
he slipped and fell on his left shoulder at work on October 15, 2018. He alleged that the fall did
more damage to his shoulder and neck because before the fall he was able to lift his shoulder and
able to tie his shoes and the pain rated at 4 or 5, but now the pain was at 7 to 10.
By decision dated December 10, 2018, OWCP accepted that the October 15, 2018
employment incident occurred as alleged and that appellant was diagnosed with left shoulder and
cervical conditions. However, it denied his claim, finding that he failed to establish that the
diagnosed conditions were causally related to the accepted employment incident.
Appellant submitted a December 7, 2018 report by Dr. Linda Park D’Andrea, a Boardcertified orthopedic surgeon, who noted that she evaluated appellant for complaints of cervical
spine pain. Dr. D’Andrea indicated that appellant had a history of cervical and left upper extremity
pain and that his symptoms worsened significantly after an October 16, 2018 fall at work.
Examination of the cervical spine revealed paraspinal tenderness and decreased range of motion
for flexion, extension, axial rotation, and lateral bending. Dr. D’Andrea diagnosed cervical spinal
stenosis, cervical spondylosis, cervicalgia, and cervical disc degeneration.
On January 3, 2019 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on April 4, 2019.
3

Following the hearing, appellant also provided additional medical evidence. In a generic
February 4, 2019 handwritten form, Dr. Reyes noted a date of injury of October 15, 2018 and
indicated that appellant could work with specific restrictions.
In a February 28, 2019 work capacity evaluation form (OWCP-5c), Dr. Lipton
recommended that appellant return to work with restrictions of no lifting with the left upper
extremity.
Dr. Ramzan Akbar, Board-certified in physical medicine and rehabilitation, in an April 11,
2019 letter related that appellant was seen for complaints of pain in the left side of the neck
radiating to the left shoulder for the past two and a half years. He noted that appellant was
diagnosed with left-sided cervical radiculopathy and left shoulder impingement syndrome with
full-thickness rotator cuff and labral tear. Dr. Akbar referred appellant to neurosurgery.
By decision dated May 7, 2019, an OWCP hearing representative affirmed the
December 10, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.8
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.9 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.10
4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).

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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.11 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.12 The weight of the 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.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish left shoulder
and cervical conditions causally related to the accepted October 15, 2018 employment incident.
Appellant was initially treated by Dr. Ritterman. In an October 18, 2018 examination
report, Dr. Ritterman related that appellant began to experience left shoulder and neck pain
in 2016. He indicated that appellant had a slip and fall injury at work approximately two days
prior and landed on his left shoulder. Dr. Ritterman also noted the date of onset as “two years,
acute on chronic pain.” He conducted an examination and diagnosed full-thickness rotator cuff
tear with acute injury from fall. While Dr. Ritterman attributed appellant’s medical conditions to
the October 15, 2018 slip and fall incident at work, he also reported a date of onset of “two years.”
The Board has held that inconsistent and contradictory reports from the same physician lack
probative value and cannot constitute competent medical evidence.15 Dr. Ritterman’s report,
therefore, fails to establish appellant’s claim.
Dr. Lipton also treated appellant. In an initial October 22, 2018 report, he failed to opine
on the issue of causation. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.16 This report, therefore, is insufficient to establish appellant’s claim.
In an October 15, 2018 progress note, Dr. Iaccarino related appellant’s complaints of left
shoulder pain after a fall at work. He diagnosed “fall, left upper arm/shoulder injury.” While
11

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
13

James Mack, 43 ECAB 321 (1991).

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
D.H., Docket No. 19-0633 (issued January 8, 2020); M.S., Docket No. 19-0913 (issued November 25, 2019).
15

K.S., Docket No. 11-2071 (issued April 17, 2012); Cleona M. Simmons, 38 ECAB 814 (1987).

16

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

5

Dr. Iaccarino discussed appellant’s fall at work, he did not provide any discussion of appellant’s
preexisting left shoulder conditions. He did not provide a reasoned explanation of how the
October 15, 2018 employment incident worsened or aggravated his underlying left shoulder
condition. Medical evidence that states a condition, but does not offer any rationalized medical
explanation regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.17 Such rationalized medical opinion is particularly important since
September 27, 2018 diagnostic test results show that appellant was diagnosed with a left shoulder
rotator cuff tear and labral tear before the October 15, 2018 employment incident.18
In a December 7, 2018 report, Dr. D’Andrea reviewed appellant’s history and noted that
appellant’s cervical and left upper extremity pain significantly worsened after an October 16, 2018
fall at work. She diagnosed cervical spinal stenosis, cervical spondylosis, cervicalgia, and other
cervical disc degeneration of the mid-cervical region. Dr. D’Andrea did not, however, offer an
opinion regarding the cause of appellant’s cervical conditions. Medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship.19 Likewise, the health unit progress notes dated August 7
to October 1, 2018 also fail to contain an opinion on the cause of the diagnosed left shoulder and
cervical conditions, and therefore, are of no probative value to establish causal relationship.20
Appellant also submitted several diagnostic reports. However, diagnostic studies lack
probative value as they do not address whether an employment incident caused the diagnosed
condition.21
On appeal counsel asserts that OWCP’s decision is contrary to law and fact. However,
there is no rationalized medical opinion, based upon a proper factual and medical background,
which explains how the October 15, 2018 employment incident either caused or aggravated
appellant’s diagnosed conditions. As such, the Board finds that appellant has not met his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish left shoulder
and cervical conditions causally related to the accepted October 15, 2018 employment incident.

17

D.H., Docket No. 17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
18

See B.R., Docket No. 16-0456 (issued April 25, 2016).

19

A.S., Docket No. 19-0915 (issued November 22, 2019); see L.B., supra note 16; D.K., supra note 16.

20

Id.

21

F.S., Docket No. 19-0205 (issued June 19, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the May 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 13, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., widow of G.G., Appellant
and
DEPARTMENT OF THE AIR FORCE,
McCLELLAN AIR FORCE BASE,
North Highlands, CA, Employer
__________________________________________

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

Docket No. 08-409
Issued: September 5, 2008

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 November 20, 2007 appellant filed a timely appeal of an August 22, 2007 decision of
the Office of Workers’ Compensation Programs which found an overpayment in the amount of
$11,164.33 and denied her request for waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $11,164.33; (2) whether the Office properly
denied appellant’s request for waiver; and (3) whether the Office properly directed recovery of
the overpayment by deducting $270.00 from her continuing compensation every four weeks.
FACTUAL HISTORY
On February 13, 1991 the employee, then a 36-year-old engineering technician filed a
claim alleging that he developed liver cancer to chemical exposure in his federal employment.

He died on March 13, 1991. On March 27, 1992 the Office accepted that the employee’s death
was due to his employment-related exposure to chemicals. It awarded benefits on behalf of
appellant’s husband for November 13, 1990 through March 13, 1991 and survivor benefits to
appellant and her children commencing March 14, 1991.
On August 5, 2003 the Office requested that appellant submit a Form EN-1617
concerning the status of her children as full-time students. On September 4, 2003 appellant
advised that her son, born May 30, 1981, had graduated from high school in 1999 and had
attempted full-time studies in August 1999, from which he later withdrew. Her son was a fulltime student again from January to June, 2000 but dropped from a full-time status in November
or December 2000. Appellant’s daughter, born September 16, 1979, graduated from high school
in 1997. Appellant’s belief was that her daughter was a part-time student as of August 1997 but
by January 1998 was a full time student through August 1999. In January, 2000 her daughter
again attempted a full-time status but withdrew. From August to December 2000, appellant’s
daughter was again a full-time student. Appellant noted that she had informed the Office at the
time as to their status.
In a November 7, 2003 memorandum, an Office claims examiner noted that an
overpayment had been created as appellant’s children had not been removed as dependents and
her son’s date of birth had been erroneously entered. The Office noted that appellant was in
receipt of compensation as a widow with two dependents, or a total of 75 percent. Her daughter
turned 18 in September 1997 and her son turned 18 in May 1999. Appellant’s daughter became
a full-time student at college from September to November 1997, at which point she dropped out
but resumed full-time status in January 1998 and remained in that status until July 1999.
Because her break in attendance was less than five months, the Office allowed appellant the
benefit of the 75 percent rate (widow with two dependents) through July 1999. Her son
attempted full-time studies in September 1999 but withdrew. Therefore, the Office allowed her
the 60 percent rate (widow with one dependent) from July to December 1999, as her son’s break
from full-time studies was less than five months but her daughter’s second break was more than
five months.
By January 2000 both children resumed full-time studies, but her daughter dropped out of
school. The Office allowed appellant the 75 percent rate for January and February 2000 and at
the 60 percent rate until July 2000. As of August 2000, her daughter was again a full-time
student as was her son. The Office allowed the 75 percent rate from August to December 2000,
until both children went part-time or dropped out. Starting in January 2001, appellant was
entitled to compensation at the 50 percent (widow with no dependents) rate. The Office found
that appellant should have received compensation of $36,592.00 during the period August 1,
1999 to December 31, 2000 and $58,593.43 from January 1, 2001 to November 1, 2003, or a
total of $95,185.43. However, during these periods, she received $106,349.76, resulting in an
overpayment of $11,164.33.
On November 20, 2003 the Office issued a preliminary determination finding that an
overpayment was created in the amount of $11,164.33 because appellant received compensation
as the employee’s surviving spouse at the wrong rate during the period August 1, 1999 to
August 10, 2003 due to the change in her children’s status as dependents. It found that appellant
was not at fault in the creation of the overpayment and advised that she could request a

2

prerecoupment hearing and submit financial information if she sought waiver of the
overpayment.
On December 6, 2003 appellant requested waiver of recovery of the overpayment. In a
January 12, 2004 letter, she noted that she had relied upon the receipt of the survivor’s benefit to
become a full-time mother and raise her children. Therefore, appellant left the workforce and
was not employed. She also noted that repayment of the overpayment would cause a severe
financial hardship as the funds use to raise her family were not at her disposal to repay.
Appellant noted that she had contacted the Office on several occasions to correct the date of her
son’s birth. In an attached overpayment recovery questionnaire, she listed total monthly income
of $2,191.00 and monthly expenses of $2,200.00. Appellant listed the value of cash, checking,
savings, stocks and bonds and other personal property as $224,519.00.
The record reflects that no further action was taken on appellant’s request for waiver until
April 25, 2007, when the Office advised her that an audit of her case revealed the unresolved
overpayment. She was requested to submit updated financial information in support of her
request for waiver.
In a May 21, 2007 letter, appellant again requested waiver of the overpayment. She
reiterated that she had attempted to keep the Office informed of any changes that would affect
her benefits and that she had relied upon erroneous information from the Office in setting the rate
at which she received survivor benefits. Appellant noted that her son’s date of birth had been
entered into the computer system as May 30, 1991 rather than May 30, 1981, and which was not
corrected by the Office until some three years after she notified it of the mistake. She addressed
the Office’s implementing federal regulations, contending that she believed the Office had
waived the overpayment in 2004 as she did not hear back in response to her prior request.
Appellant noted that she recently purchased a home in reliance of receipt of her benefits and that
repayment would cause a severe financial hardship. Moreover, she had relied upon the receipt of
benefits when she left her job in 1993 to raise her children. Appellant submitted materials
pertaining to her income and expenses, listing monthly income of $2,498.32 and monthly
expenses of $3,132.00. She listed the value of other assets as $126,267.00.
In an August 22, 2007 decision, the Office finalized the overpayment in the amount of
$11,164.33 for which appellant was without fault. It found that she was not entitled to waiver of
recovery of the overpayment and that $270.00 would be withheld from her continuing
compensation benefits every 28 days.
LEGAL PRECEDENT
Section 8133(a) of the Federal Employees’ Compensation Act provides that, if an
employee’s death results from an injury sustained in the performance of duty, the United States
will pay a monthly compensation equal to a percentage of the monthly pay of the deceased
employee in accordance with the following schedule: (1) to the widow or widower, if there is no
child, 50 percent; (2) to the widow or widower, if there is a child, 45 percent and in addition 15
percent for each child, not to exceed 75 percent; (3) to the children, if there is no widow or

3

widower, 40 percent for one child and 15 percent for each additional child, not to exceed a total
of 75 percent.1
Section 8133(b) provides in pertinent part that the compensation payable under
subsection (a) is paid from the time of death until a child dies, marries or becomes 18 years of
age. Notwithstanding, compensation that would otherwise end because the child has reached 18
years of age shall continue if he or she is a student as defined by section 8101 for as long as the
child continues to be a student, up until age 23 or until marriage.2
In turn, section 8101(17) provides that student means an individual under 23 years of age
who has not completed four years of education beyond the high school level and who is regularly
pursuing a full-time course of study or training at an accredited institution.3 Such an individual
is not deemed to have ceased to be a student during an interim between school years if the
interim is not more than four months and he or she has a bona fide intent to continue to pursue a
full-time course of study.4
ANALYSIS
The Office accepted that the employee was exposed to chemicals in his federal
employment which contributed to his death on March 13, 1991. It awarded benefits to the
employee from November 13, 1990 through the time of death in 1991. Thereafter, the Office
awarded compensation benefits under section 8133(b) to appellant as the surviving spouse with
two dependents. Under this section, benefits were awarded to appellant of 45 percent as the
employee’s widow with an additional 15 percent allowed for each child, the statutory maximum
total of 75 percent. The record reflects that compensation was paid at this rate through the time
that appellant’s children turned 18 years of age. Thereafter, to continue receiving the 15 percent
allowed for each child, it was incumbent that her children continue as full-time students regularly
pursuing a course of study at an accredited institution.
As noted, appellant’s daughter turned 18 on September 16, 1997 and her son turned 18 on
May 30, 1999. The overpayment of compensation arose as appellant received benefits at the 75
percent rate for a widow with two dependent children although her children did not maintain
their full-time student status during the period August 1, 1999 to August 10, 2003. Appellant’s
daughter became a full-time student from September to November 1997, at which she dropped
out. However, she resumed a full-time status in January 1998 and remained so until July 1999.
As her break in attendance was less than five months, the Office allowed appellant survivor
benefits at the 75 percent rate through July 1999. Thereafter, appellant’s son attempted full-time
studies in September 1999 but withdrew. The Office found that she was entitled to benefits at 60
percent (widow and one dependent) from July to December 1999, as her son returned to full-time
studies in January 2000. However, as her daughter’s attendance break was greater than five
months, she did not qualify as a dependent. For the five months from August 1 to December 31,
1

5 U.S.C. § 8133(a).

2

5 U.S.C. § 8133(b).

3

5 U.S.C. § 8101(17).

4

Id. See 20 C.F.R. § 10.5(a)(25) which defines “student.”

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1999, appellant should have received monthly benefits of $1,898.00, or a total of $9,490.00, at
the 60 percent rate rather than compensation at the 75 percent rate, or $2,411.00, or a total of
$12,055.00, a difference of $2,565.00.
In January 2000, both children were full-time students; however, appellant’s daughter
dropped out. The Office found that appellant was entitled to benefits at the 75 percent rate for
January and February 2000. Thereafter, benefits should have been paid at the 60 percent rate
($1,980.00 per month or a total of $9,900.00) based on her son continuing his full-times studies
until July 2000, a period of five months. As appellant received benefits of $2,476.00 per month
for this period, a total of $12,380.00, this created a difference of $2,480.00.
In August 2000, her daughter again became a full-time student and the Office allowed the
75 percent rate for two dependents from August through December 2000, until her children went
part time or dropped out. As of January 2001, appellant was entitled to survivor benefits at the
50 percent rate for a widow with no dependents.
The Board finds that the Office properly determined that appellant received an
overpayment of compensation based on the improper calculation of survivor benefits for the
period in question based on the status of her children as eligible dependents. Although appellant
contends that the overpayment arose based on the negligence of the Office in administering her
benefits, this does not preclude the finding of overpayment in this case. She was found to be
without fault in the creation of the overpayment, thereby allowing consideration of waiver of the
overpayment. The record establishes that appellant received survivor benefits in excess of those
to which her family was eligible based on her children’s status as full-time students after they
reached age 18.
The Board also finds, however, that the Office’s decision is not explained well as to how
the amount of the overpayment was calculated. While the brief memorandum of record does
note applicable pay rates from 1993 to 2000 and the status of appellant’s children, it does not
make adequate findings of fact. If appellant was in receipt of compensation at the 75 percent rate
during the entire period of the overpayment, it is not readily apparent why the Office added the
two months of January 1 to February 29, 2000 and the five months from August 1 to
December 31, 2000, for which the family was eligible to receive compensation at the 75 percent
rate, into the amount overpaid. The memorandum reveals an error in transcribing the five
months of compensation paid from August 1 to December 31, 2000 at $2,476.00 as $13,480.00.
Moreover, no applicable pay rates are listed after March, 2000 nor any specific findings made as
to the compensation paid through August 10, 2003. In short, the Office’s memorandum does not
adequately apprise appellant of how the amount of overpayment was determined. The case will
be remanded to the Office for a further determination as to the amount of overpayment created in
this case. This should be followed by a de novo decision setting forth adequate factual findings
as to the amount and appellant’s eligibility for waiver.
CONCLUSION
The Board finds that the Office properly determined that an overpayment of
compensation was created in this case; however, the Office did not make adequate factual
findings on how the amount of the overpayment was determined. The case is not in posture for

5

decision as to whether the Office properly denied waiver of the overpayment or the rate of
recovery from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed as to fact of overpayment. The decision is set
aside as to the issue of amount of the overpayment and the case remanded for further
development consistent with this decision.
Issued: September 5, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC ATMOSPHERIC
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0963
Issued: September 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 16, 2015 appellant, through counsel, filed a timely appeal from a
September 15, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days elapsed from OWCP’s last merit decision on July 11, 2012 to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
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

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). The Board denied the request in an October 9, 2015 order as his arguments could be
adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 15-0963 (issued October 9, 2015).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
In 2005 OWCP accepted that appellant, an engineer about the McArthur II, developed an
aggravation of chronic obstructive pulmonary disease in the performance of duty. His pay rate
has remained a disputed issue in his claim.
In the July 11, 2012 decision, an OWCP hearing representative found that the effective
date of appellant’s pay rate should be December 6, 2004, the date his disability began. The
record indicated that appellant was earning $50,798.00 as a second assistant engineer on
December 6, 2004. Indeed, appellant represented on his initial injury claim form that he was a
second engineer. The hearing representative found that average annual earnings should be
determined under 5 U.S.C. § 8114(d)(2). She also found that OWCP properly included
increments for penalty pay/post differential, monthly leave supplement/ nonwatch standing
allowance, and subsistence and quarters. The hearing representative ultimately concluded in a
decision of July 11, 2012, that appellant’s weekly pay rate for compensation purposes was
$1,079.62.
On August 14, 2013 the Board affirmed the hearing representative’s July 11, 2012
decision4 as to appellant’s pay rate for compensation purposes.
On July 29, 2014 OWCP received appellant’s requested reconsideration.5 Appellant
noted that he was submitting new evidence to show that at the time disability began he was a first
assistant engineer and had been since 2004 [sic]. He argued that this was relevant because the
employing establishment injury compensation officer had claimed that he was a second assistant
engineer on the date disability began, and that he did not work as a first assistant engineer during
substantially the whole year immediately preceding the date disability began. This new
evidence, appellant argued, was proof that he worked as a first assistant engineer for more than
11 straight months prior to and including the date disability began. Documentation notes:
“The employing establishment acknowledges in their letter of April 4, 2012 that
[appellant] was promoted to First Asst. Engineer on June 29, 2003. It was a
temporary promotion and his permanent promotion to First Asst. Engineer
became effective on June 11, 2004. [Appellant] worked continuously as a First
Asst. Engineer from June 29, 2003 until the date disability began on
January 31, 2005.”
4

Docket No. 13-0522 (issued August 14, 2013).

5

Although appellant claimed to be filing a request for reconsideration from the Board’s August 14, 2013
decision, OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R.
§ 501.6(d). Although the August 14, 2013 Board decision was the last merit decision, the hearing representative’s
July 11, 2013 decision is the appropriate subject of possible modification by OWCP.

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Appellant submitted a copy of the April 4, 2012 letter from the manager of the employing
establishment’s workers’ compensation program. The manager advised that appellant was a
second assistant engineer at the time of injury and was promoted, on a temporary basis, to the
position of first assistant engineer on June 29, 2003, two months after the injury. The manager
argued that appellant’s weekly salary rate should be based on his pay rate as a second assistant
engineer.
Appellant also submitted an SF-3112B, a supervisor’s statement in connection with
disability retirement, which indicated that the title of appellant’s position of record was first
assistant engineer. The statement also noted that he had entered into that position on
June 11, 2004. The statement also indicated that he retired effective January 31, 2005.
By decision dated September 15, 2014, OWCP denied appellant’s reconsideration
request. It found that the evidence submitted was cumulative and thus substantially similar to
evidence or documentation that was already contained in the case file and was thus previously
considered.
On appeal, appellant argues that his pay rate should be based on his total gross earnings a
year prior to the date disability began, not based on the earnings of a hypothetical second
assistant engineer under 5 U.S.C. § 8114(d)(2). He argues that the new evidence he submitted is
relevant and proves that he was a first assistant engineer on December 6, 2004.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.6 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought.8 The one-year period begins on the date of the
original decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues. This includes any hearing or review of the written
record decision, any denial of modification following reconsideration, any merit decision by the
Board, and any merit decision following action by the Board, but does not include prerecoupment hearing decisions.9
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b).

8

Id. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004).
(Emphasis deleted.)

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A timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence or argument that meets at least one of the three standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.10
ANALYSIS
OWCP received appellant’s reconsideration request on July 29, 2014, within one
calendar year of the Board’s August 14, 2013 merit decision. The request is therefore timely.
The issue on this appeal is whether the evidence appellant submitted to support his request for
reconsideration constitutes relevant and pertinent new evidence not previously considered by
OWCP.11
The April 4, 2012 correspondence from the manager of the employing establishment’s
workers’ compensation program is not new evidence. OWCP previously received this evidence
on April 9, 2012 in connection with appellant’s hearing request. The hearing representative
noted this evidence in her July 11, 2012 decision. Evidence that repeats or duplicates evidence
already of record has no evidentiary value and constitutes no basis for reopening a case.12
Accordingly, the Board finds that this evidence does not meet the third standard for obtaining a
merit review of appellant’s claim.
The August 15, 2005 SF-3112B, supervisor’s statement in connection with disability
retirement, is also not new evidence. OWCP previously received this evidence on August 30,
2005, together with appellant’s IRS Form W-2 wage and tax statements. It later received this
same evidence on March 28, 2007. As before, evidence that repeats or duplicates evidence
already of record has no evidentiary value and does not constitute a basis for reopening appellant’s
claim. Accordingly, the Board finds that this evidence does not meet the third standard for
obtaining a merit review of appellant’s claim.
Appellant argues on appeal that the evidence he submitted is new and relevant and
therefore entitles him to a merit review. However, as explained above, the evidence is not new.
Because the evidence repeats or duplicates evidence already in the record, it provides no basis
for reopening his case.
CONCLUSION
The Board finds OWCP properly denied appellant’s request for further merit review of
his claim pursuant to 5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.608.

11

Appellant did not attempt to show that OWCP erroneously applied or interpreted a specific point of law, nor
did he advance a relevant legal argument not previously considered by OWCP
12

Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

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ORDER
IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0091
Issued: July 26, 2019

Case Submitted on the Record

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

On October 15, 2018 appellant filed a timely appeal from a September 17, 2018 of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-0091.
The Board has duly considered the matter and finds that this case is not in posture for a
decision.
By decision dated October 2, 2009, OWCP accepted appellant’s claim for hearing loss due
to his employment-related noise exposure. However, it denied his claim for a schedule award
finding that his hearing loss was not sufficiently severe to be ratable.
Following this decision, appellant submitted additional medical evidence regarding the
extent of his permanent hearing loss, including a December 20, 2012 audiogram received by
OWCP on February 11, 2013. OWCP also developed the medical evidence, including referral to
a second opinion physician and review by an OWCP district medical adviser (DMA). This referral
to the second opinion physician also produced an April 10, 2014 audiogram. On August 8, 2017
OWCP advised appellant that the DMA recommended obtaining new audiometric tests and that
once they were received the case would be referred back to the DMA for an opinion of the extent

of his hearing loss, if any, for purposes of a schedule award. On September 5, 2018 OWCP
received an August 28, 2018 audiogram.
On September 5, 2018 appellant requested reconsideration of the merits of his claim and
submitted additional evidence of hearing impairment. By decision dated September 17, 2018,
OWCP declined to reopen his schedule award claim finding that his request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that, in accordance with relevant case law and regulations, the case should
be remanded for adjudication of appellant’s schedule award claim. A claimant may seek a
schedule award or an increased schedule award at any time if the evidence establishes that he or
she sustained impairment or increased impairment at a later date causally related to the accepted
employment injury.1
As appellant requested reconsideration of his schedule award decision and OWCP received
new medical evidence in support of the claim, OWCP failed to properly adjudicate and process
the claim.2 The Board will therefore remand the case for further development, if necessary,
followed by a de novo merit decision addressing the medical evidence submitted in support of
appellant’s schedule award claim. Accordingly,

1

See S.B., Docket No. 15-1499 (issued October 16, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(b) (January 2010).
2
OWCP developed the medical evidence in furtherance of appellant’s schedule award claim. Proceedings under
FECA are not adversarial in nature, and OWCP is not a disinterested arbiter. See T.E., Docket No. 18-1595 (issued
March 13, 2019); J.S., Docket No. 16-0777 (issued January 3, 2017); Vanessa Young, 55 ECAB 575 (2004). The
claimant has the burden of proof to establish entitlement to compensation, but OWCP shares responsibility in the
development of the evidence to see that justice is done. See V.H., Docket No. 18-0848 (issued February 25, 2019);
T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983). Once OWCP
undertakes development of the record, it must do a complete job in procuring medical evidence that will resolve the
relevant issues in the case. Id.; See V.B., Docket No. 18-1273 (issued March 4, 2019); Richard F. Williams, 55 ECAB
343, 346 (2004).

2

IT IS HEREBY ORDERED THAT the September 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: July 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 14-358
Issued: August 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 2, 2013 appellant filed a timely appeal from a June 17, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award and an
August 26, 2013 nonmerit decision denying his request for reconsideration. 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 appeal.
ISSUES
The issues are: (1) whether appellant established a bilateral sensorineural hearing loss
with tinnitus causally related to factors of his federal employment; and (2) whether OWCP
properly refused to reopen his case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2012 appellant, then a 56-year-old border patrol firearms instructor,
filed an occupational disease claim alleging a permanent hearing loss due to factors of his federal
employment. He first became aware of his condition and realized that it was caused or
aggravated by his employment on October 8, 2010. Appellant did not stop work.
OWCP received employment records that included hearing tests and audiogram results.
It also received a December 19, 2012 audiogram from a private audiologist which showed
hearing levels of 25, 30, 35 and 35 decibels for the right ear and 25, 30, 30 and 45 decibels for
the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz). A physician did not sign
the report. Appellant provided a statement in which he noted that he was exposed to loud noise
created by different types of firearms. He was a firearms instructor who, every quarter, spent
three weeks being exposed to loud noise from firearms for eight hours a day. Appellant noted
that, in 2008, he was certified as an “Armorer” which contributed to his ear afflictions, loss of
hearing and ringing in his ears which kept him awake at night.
By letter dated April 12, 2013, OWCP referred appellant for a second opinion evaluation,
together with a statement of accepted facts, a set of questions and the medical record, to
Dr. Ronald Blumenfeld, a Board-certified otolaryngologist.2 In a May 1, 2013 report,
Dr. Blumenfeld noted findings on examination and noted that appellant’s audiogram that day
was similar to an audiogram from December 19, 2012, but completely different from tests
obtained on April 29, 2009 and July 22, 2010. Appellant had a sensorineural loss in excess of
what would normally be expected on the basis of presbycusis. Dr. Blumenfeld opined that the
accepted workplace noise exposure from firing weapons was sufficient as to intensity and
duration to have caused the loss in question. He diagnosed sensorineural hearing loss and
tinnitus. Dr. Blumenfeld advised that the tinnitus was constant day and night and affected
appellant’s sleep patterns and daily activities, altering his quality of life. The audiometric testing
completed on May 1, 2013 revealed hearing levels of 25, 25, 25 and 25 decibels in the right ear
and 20, 20, 25 and 30 decibels in the left ear at levels of 500, 1,000, 2,000 and 3,000 Hz,
respectively. Auditory discrimination scores were 100 percent in both ears. Dr. Blumenfeld
utilized the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(6th ed. 2009) (hereinafter, A.M.A., Guides) to find that appellant sustained zero percent hearing
impairment. He added five percent impairment for tinnitus and found that appellant sustained a
total five percent hearing impairment. Dr. Blumenfeld advised that appellant did not presently
need hearing aids, but would need them in the future. He noted a maximum medical
improvement date of May 1, 2013.
In a May 15, 2013 report, Dr. Ronald H. Blum, an OWCP medical adviser, reviewed
Dr. Blumenfeld’s medical report and the A.M.A., Guides. He determined that appellant
sustained zero percent binaural hearing loss. Dr. Blum advised that maximum medical
improvement was reached on May 1, 2013. He noted that Dr. Blumenfeld described bilateral
tinnitus which was present all the time that interfered with sleep and daytime activities that
2

In a statement of accepted facts, OWCP indicated that appellant was exposed to noise pollution to include
exposure to 120 hours of noise from firearms due to his work as an instructor or 480 hours annually.

2

affected appellant’s quality of life. Dr. Blum explained that, because appellant did not have any
ratable binaural hearing loss, an impairment rating based on tinnitus was not appropriate. He
concurred that workplace noise exposure was sufficient to be a contributing factor to appellant’s
hearing loss. Dr. Blum noted that hearing aids were not authorized.
By decision dated May 17, 2013, OWCP accepted appellant’s claim for bilateral
sensorineural hearing. On June 7, 2013 appellant filed a Form CA-7 claim for a schedule award.
By decision dated June 17, 2013, OWCP denied appellant’s claim for a schedule award.
It found that the medical evidence failed to establish a ratable impairment for hearing loss.
On July 29, 2013 appellant requested reconsideration. He noted that he recently
discovered that tinnitus was attributed to the discharging of firearms. OWCP also received
documentation pertaining to exposure to tuberculosis and an article on tuberculosis.
In an August 26, 2013 decision, OWCP denied appellant’s request for reconsideration
without a review of the merits. It found that the evidence was not sufficient to warrant a merit
review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 provides compensation to employees
sustaining permanent loss or loss of use, of specified members 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 results in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable
to all claimants. The A.M.A., Guides has been adopted by OWCP for evaluating schedule
losses and the Board has concurred in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 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.6 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 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

3

5 U.S.C. § 8107.

4

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

A.M.A., Guides 250.

6

Id.

7

Id.

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divided by six to arrive at the amount of the binaural hearing loss.8 The Board has concurred
in OWCP’s adoption of this standard for evaluating hearing loss.9
ANALYSIS -- ISSUE 1
Appellant filed a claim for hearing loss in the performance of duty. On April 12, 2013
OWCP referred him to Dr. Blumenfeld, a Board-certified otolaryngologist, for a second opinion
evaluation. Dr. Blumenfeld diagnosed sensorineural hearing loss and tinnitus due to appellant’s
employment-related noise exposure.
He examined appellant and tested his hearing.
Dr. Blumenfeld attached a May 1, 2013 audiogram showing hearing levels of 25, 25, 25 and 25
decibels in the right ear and 20, 20, 25 and 30 decibels in the left ear at Hz levels of 500, 1,000,
2,000 and 3,000 respectively. He rated a five percent hearing loss for tinnitus. Dr. Blumenfeld
indicated a maximum medical improvement date of May 1, 2013.
OWCP properly referred the medical evidence to its medical adviser, for a rating of
permanent impairment in accordance with the A.M.A., Guides.10 In a May 15, 2013 report,
Dr. Blum applied the findings of the May 1, 2013 audiogram to calculate a nonratable hearing
loss. In accordance with page 247 of the A.M.A., Guides, he averaged appellant’s hearing levels
of 25, 25, 25 and 25 decibels in the right ear and 20, 20, 25 and 30 decibels in the left ear at Hz
levels of 500, 1,000, 2,000 and 3,000, respectively, to find average hearing levels of 25 percent
on the right and 23.75 on the right.11 Dr. Blum then subtracted a 25-decibel fence12 and
multiplied the remaining balance, by 1.5 to find zero percent monaural impairment for each
ear.13 Regarding Dr. Blumenfeld’s determination that appellant had a ratable impairment due to
tinnitus, he referred to section 11.2b of the A.M.A., Guides which states that, if tinnitus interferes
with activities of daily living, up to five percent may be added to a measurable binaural hearing
impairment.14 Dr. Blum opined that this was inapplicable since appellant did not have
measurable hearing impairment.
As OWCP’s medical adviser properly applied the A.M.A., Guides in calculating
appellant’s impairment rating, OWCP correctly relied on his opinion to find that appellant’s
hearing loss is nonratable for schedule award purposes.15 Furthermore, as there was no ratable
8

Id.

9

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon., granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).
10

See Hildred I. Lloyd, 42 ECAB 944 (1991).

11

A.M.A., Guides 247.

12

The A.M.A., Guides provides that when the average of the hearing levels at 500, 1,000, 2,000 and 3,000 Hz is
25 decibels or less, the ability to hear everyday sounds under everyday listening conditions is not impaired. The
subtraction of the 25-decibel fence represents this finding. Id. at 250.
13

Id.

14

Id. at 349.

15

See Linda Beale, 57 ECAB 429 (2006).

4

hearing impairment, appellant was not eligible for the additional rating for tinnitus.16 The Board
finds that there is no evidence of greater impairment.17
On appeal, appellant submitted additional evidence. The Board cannot consider this
evidence as its review is limited to the evidence of record which was before OWCP at the time of
its final decision.18 Appellant disagreed with the schedule award decision and noted that his
tinnitus is due to exposure to firearms. As stated, no schedule award is payable for tinnitus in the
absence of a ratable hearing loss.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,19 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”20
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.21
16

See Juan A. Trevino, 54 ECAB 358 (2003) (the Board found that, as appellant’s hearing loss was not ratable, he
was not entitled to the additional award for tinnitus).
17

Although the record contains a December 19, 2012 audiogram from an audiologist, this does not constitute
probative medical evidence as it was not certified by a physician as accurate. See R.B., Docket No. 10-1512 (issued
March 24, 2011); Joshua A. Holmes, 42 ECAB 231 (1990) (OWCP does not have to review audiograms not certified
by a physician and it is the claimant’s burden to submit a properly certified audiogram for review if he objects to the
audiogram selected by OWCP for determining the degree of hearing loss). See also 5 U.S.C. § 8101(2) (defines the
term “physician”).
18

20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

19

5 U.S.C. § 8128(a).

20

20 C.F.R. § 10.606(b).

21

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for a schedule award and timely
requested reconsideration on July 29, 2013. The underlying issue on reconsideration is medical
in nature, whether he had a measurable scheduled impairment for hearing loss.
On reconsideration, appellant argued that he recently learned that tinnitus was attributed
to the discharging of firearms. He also provided documentation pertaining to tuberculosis. The
underlying issue on reconsideration is medical in nature. OWCP denied the claim because the
medical evidence did not support that appellant had a ratable hearing loss pursuant to its
applicable standards. The Board notes that he did not argue that there was a legal error by
OWCP or advance a relevant legal argument not previously considered. Furthermore, appellant
did not submit medical evidence supporting that his accepted hearing loss is ratable under
OWCP’s standards. 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.22
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by OWCP or submit new and
relevant evidence not previously considered. As he did not meet any of the necessary regulatory
requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award due to
his accepted hearing loss. The Board also finds that OWCP properly refused to reopen his case
for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

22

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the August 26 and June 17, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION,
La Tuna, TX, Employer
__________________________________________

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

Docket No. 11-2124
Issued: May 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 21, 2011 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ July 12, 2011 merit decision denying his request for authorization of a
health club membership and September 8, 2011 nonmerit decision denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether OWCP abused its discretion in denying appellant’s request
for authorization of a health club membership; and (2) whether OWCP properly denied
appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 7, 2000 appellant, then a 42-year-old brush maker
supervisor, sustained lumbar and cervical subluxations, lumbar and cervical herniated discs and a
neck sprain when he fell off a broken chair he was sitting on at work.
On February 24 and March 24, 2010 Dr. Alvaro A. Hernandez, an attending Boardcertified orthopedic surgeon, prescribed a one-year YMCA membership. He reviewed the results
of an electromyogram (EMG) and magnetic resonance imaging (MRI) scan. Dr. Hernandez
advised that appellant had a closed lumbar vertebra, degeneration of the cervical intervertebral
disc, derangement of the medial meniscus and lumbar intervertebral disc without myelopathy.
He stated that the progressive degeneration in the back caused his continuing symptomatology.
Dr. Hernandez noted that appellant’s participation in an exercise program at the YMCA at that
time helped to keep his weight off and his back strong and made him a more active person. He
advised that it was medically necessary for appellant to continue the program since it had been
very beneficial for him and would continue to benefit him in the future.
On June 9, 2011 Dr. Hernandez requested that OWCP authorize a one-year membership
for the YMCA. In a certificate of medical necessity and prescription dated April 27, 2011, he
recommended a one-year YMCA membership to treat appellant’s brachia neuritis or radiculitis
not otherwise specified, synovitis and tenosynovitis not otherwise specified and carpal tunnel
syndrome. The membership would continue to help his range of motion and decrease his painful
symptoms.
On June 28, 2011 Dr. Henry B. Mobley, a Board-certified internist and OWCP medical
adviser, reviewed appellant’s medical record. He noted that appellant’s accepted conditions
included lumbar and cervical closed dislocation, degeneration of cervical discs and degenerative
disc disease. Dr. Mobley also noted that appellant had failed upper and lower back syndromes
with chronic complaints of pain and weakness in the bilateral upper and lower extremities. He
indicated that cervical surgery was recommended but never performed. Dr. Mobley stated that a
February 10, 2010 EMG of the lower extremity showed bilateral peripheral neuropathies and
lumbar radiculopathies. He stated that, while membership in an exercise club was not
discouraged by OWCP, its regulations required that the least expensive method be used to obtain
the goal. Dr. Mobley advised that most of the benefits from a health club membership could be
attained by participation in a well-developed and organized home program that included
conditioning and back exercises, in other words, walking for conditioning and proper
calisthenics. As the benefits of a health club membership could be obtained by simpler and less
costly means of treatment, he recommended against its authorization.
In a July 12, 2011 decision, OWCP denied appellant’s request for a gym membership. It
found that the weight of the medical evidence was represented by Dr. Mobley’s opinion and did
not establish that the recommended YMCA membership was medically necessary for his
accepted conditions.
On August 17, 2011 appellant requested reconsideration.
In an April 27, 2011 progress note, Dr. Hernandez listed findings on physical
examination and diagnosed cervical and lumbar syndrome. He recommended the renewal of
appellant’s YMCA membership. In a June 8, 2011 prescription, Dr. Hernandez again ordered a
2

YMCA membership to treat appellant’s derangement of the medial meniscus. In an August 9,
2011 report, he stated that appellant had faithfully gone to the YMCA to perform exercises
which helped to control his neck and back symptoms. The facilities at the YMCA allowed him
to perform exercises with supervision. They also provided a pool and abundant exercise
equipment which were not available to appellant at home and necessary to help him control his
symptomatology.
Appellant submitted a duplicate copy of Dr. Hernandez’s April 27, 2011 certificate of
medical necessity. He also submitted an Internet document which addressed entitlement to
compensation benefits for employment-related injuries or death for federal employees and their
surviving dependents under Chapter 81 of FECA.
In a September 8, 2011 decision, OWCP denied appellant’s request for reconsideration,
finding that he neither raised substantive legal questions nor included new and relevant evidence
and, thus, it was insufficient to warrant a merit review of his claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA2 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 or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.3
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible, in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.4 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were
incurred for treatment of the effects of an employment-related injury by submitting rationalized
medical evidence that supports such a connection and demonstrates that the treatment is
necessary and reasonable.5 While OWCP is obligated to pay for treatment of employmentrelated conditions, the employee has the burden of establishing that the expenditure is incurred
for treatment of the effects of an employment-related injury or condition.6
Regarding membership in a health club or spa, OWCP’s procedure manual provides that
health club memberships may be authorized if needed to treat the effects of an injury, that such
memberships may be approved only for periods of six months at a time and that the treating
physician must describe the specific therapy and exercise routine needed, the anticipated
2

Id. at §§ 8101-8193, § 8103.

3

Id. at § 8103(a).

4

Dr. Mira R. Adams, 48 ECAB 504 (1997).

5

See Debra S. King, 44 ECAB 203 (1992).

6

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

3

duration of the recommended regimen, the specific equipment or facilities needed, the treatment
goals, the actual or anticipated effectiveness of the regimen, the frequency of examinations to
determine the ongoing need for the program and whether the exercise routine can be performed
at home.7
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.8 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
a referee physician, pursuant to section 8123(a), to resolve the conflict in the medical evidence.9
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion between Dr. Hernandez, an attending physician, and Dr. Mobley, OWCP’s medical
adviser, as to whether the recommended YMCA membership is medically warranted for
appellant’s accepted conditions.
Dr. Hernandez recommended a one-year renewal of appellant’s YMCA membership
based on his diagnoses of a closed lumbar vertebra, degeneration of the cervical intervertebral
disc, derangement of the medial meniscus, lumbar intervertebral disc without myelopathy,
brachia neuritis or radiculitis not otherwise specified, synovitis and tenosynovitis not otherwise
specified and carpal tunnel syndrome. He stated that the progressive degeneration in the back
caused appellant’s continuing symptomatology. Dr. Hernandez advised that it was medically
necessary for him to continue his exercise program at the YMCA because it was very beneficial
and would continue to benefit him in the future. He related that it helped to keep appellant’s
weight off and back strong, improve his range of motion and decrease his painful neck and back
symptoms. Dr. Hernandez further related that appellant’s participation in the exercise program
made him a more active person.
Dr. Mobley reviewed Dr. Hernandez’s findings and appellant’s medical record. He cited
a pertinent section of FECA and OWCP’s procedures and advised that the benefits from a health
club membership could be attained by participation in a well-developed and organized home
program that included conditioning and back exercises such as, walking for conditioning and
proper calisthenics. Dr. Mobley advised that, since the benefits of a health club membership
could be obtained by simpler and less costly means of treatment, the request for authorization of
the YMCA membership should be denied.
The Board finds that a conflict exists as to whether the recommended YMCA
membership was medically necessary for appellant’s September 7, 2000 accepted conditions.
Accordingly, the Board will set aside the July 12 and September 8, 2011 decisions and remand
the case to OWCP for referral of appellant, the medical record and a statement of accepted facts
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.15 (July 2000).
8

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

9

William C. Bush, 40 ECAB 1064 (1989).

4

to an appropriate independent medical specialist to determine whether the recommended health
club membership is medically necessary for the employment-related conditions. Following this
and such other development as deemed necessary, OWCP should issue a de novo decision on
appellant’s claim.10
CONCLUSION
The Board finds that the case is not in posture for decision due to an unresolved conflict
in medical opinion regarding the medical necessity of a health club membership.
ORDER
IT IS HEREBY ORDERED THAT the September 8 and July 12, 2011 decisions of the
Office of Workers’ Compensation Programs are set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: May 23, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

10

The Board finds that it is unnecessary to address the second issue in this case in view of the Board’s disposition
of the first issue.

5