United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 16-0289
Issued: April 21, 2016

Case Submitted on the Record

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

JURISDICTION
On December 2, 2015 appellant filed a timely appeal from a November 23, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $7,872.76 for the
period May 4 through July 25, 2015; and (2) whether appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver.
On appeal appellant agreed that he had received an overpayment, but disagreed with the
amount.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 21, 2014 appellant, then a 29-year-old physical science technician, filed a
traumatic injury claim (Form CA-1) alleging that on October 31, 2014 he was struck by a motor
vehicle in the performance of duty. He asserted that he sustained contusion of the lung and
spinous process fractures. OWCP accepted appellant’s claim on January 8, 2015 for closed
dislocation of the left wrist and closed fracture of the left wrist. Appellant underwent surgeries
on his left wrist on October 31, November 4 and 6, 2014, and March 6, 2015.
Appellant filed a claim for compensation (Form CA-7) for leave without pay beginning
December 16, 2014. He requested direct deposit of his compensation benefits. Appellant
continued to submit Form CA-7s requesting compensation through March 27, 2015. OWCP
noted receiving appellant’s direct deposit election form on May 13, 2015 and indicated that the
system had been updated with appellant’s account information.
Appellant returned to part-time modified work on May 4, 2015. He worked six hours a
day, beginning May 4, 2015 and then four hours a day beginning May 28, 2015.
On July 28, 2015 OWCP determined that appellant had received compensation in the
amount of $2,561.02 for the period May 4 through 30, 2015 on May 30, 2015; compensation in
the amount of $2,655.87 for the period May 31 through June 27, 2015 on June 27, 2015; and
compensation in the amount of $2,655.87 for the period June 28 through July 25, 2015 on
July 25, 2015. It determined that appellant had received a total overpayment in the amount of
$7,872.76.
OWCP issued a preliminary determination of overpayment on August 31, 2015 finding
that appellant had received an overpayment in the amount of $7,872.76 because he accepted total
disability compensation payments after returning to work beginning May 4, 2015. It asserted
that he had received compensation via Form CA-7’s through April 4, 2015 and was entered on
the periodic rolls effective April 5, 2015. OWCP noted that appellant continued to receive
periodic roll payments until compensation was terminated on July 28, 2015. It found that
appellant was at fault in creating the overpayment as he knew or should have known that there
was no entitlement to receive wage-loss benefits for total disability after returning to part-time
work. OWCP informed appellant of his appeal rights and requested that he complete an
overpayment recovery questionnaire (Form OWCP-20) if he disagreed with the preliminary
findings and conclusions.
By decision dated November 23, 2015, OWCP issued a final decision, finding that
appellant had received an overpayment of compensation in the amount of $7,872.76 for the
period May 4 through July 25, 2015. It found that appellant was at fault in the creation of the
overpayment as he continued to receive compensation payments for total disability after
returning to part-time work. OWCP further noted that appellant did not contest the fault finding
and did not submit a completed Form OWCP-20.

2

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.2
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.3
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.4 OWCP procedures provide that an overpayment in compensation is created when
a claimant returns to work but continues to receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
OWCP found that appellant received an overpayment of compensation in the amount of
$7,872.76 for the period May 4 through July 25, 2015 as he returned to part-time work on May 4,
2015, but continued to receive payments for total disability through July 25, 2015. Appellant, on
appeal, has agreed that he received an overpayment of compensation after he returned to parttime work. However, he argued that OWCP failed to properly calculate the amount of the
overpayment. The Board finds that appellant received an overpayment, but that OWCP has not
established the amount of the overpayment.
OWCP determined that appellant had been paid $7,872.76 in net compensation for the
period May 4 through July 25, 2015 for total disability. It determined that this entire amount was
an overpayment. OWCP did not provide any calculations regarding the amount of compensation
to which appellant was entitled for his period of partial disability beginning May 4, 2015. As it
has not provided appropriate calculations, the Board cannot affirm the amount of the
overpayment.6
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation benefits following his return to work on May 4, 2015. The Board, however, is
unable to render a decision on the amount of the overpayment given appellant’s return to parttime rather than full-duty work. The case must be remanded for further development on this
issue.

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

See D.B., Docket No. 15-0258 (issued February 1, 2016).

5

See Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2a (May 2004).
6

Due to the Board’s disposition in Issue 1, the remaining issue is not in posture for decision.

3

ORDER
IT IS HEREBY ORDERED THAT November 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision of the Board.
Issued: April 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ventura, CA, Employer
__________________________________________

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

Docket No. 08-2152
Issued: August 7, 2009

Case Submitted on the Record

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

JURISDICTION
On July 31, 2008 appellant timely appealed the August 14, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied wage-loss compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant was disabled from February 24 until July 27, 2005 as a
result of her November 15, 2004 employment injury.
FACTUAL HISTORY
Appellant, a 60-year-old former letter carrier, has an accepted occupational disease claim
file number xxxxxx042 for degenerative disc disease of the cervical (C5-7), thoracic (T4-T8) and
lumbar (L5-S1) spine, which arose on or about December 5, 1990. Additional accepted
conditions include lumbar disc displacement (L2-3 and L5-S1) and right trochanteric bursitis.
Due to her accepted injuries, appellant was no longer able to perform her regular duties as a letter

carrier.1 Dating back to September 18, 1993, the employing establishment has provided her
limited-duty work.
Following May 10, 2004 surgery for a right upper extremity condition, appellant resumed
her previous limited-duty assignment effective November 1, 2004. After approximately four
months, she stopped working due to low back and left lower extremity complaints. On
March 25, 2005 appellant filed a claim for recurrence of disability beginning February 24, 2005.
She believed that the recurrence was causally related to her December 5, 1990 employment
injury. The Office, however, advised appellant that her claim would be treated as a new
occupational disease claim because she had indicated that her current complaints were the result
of additional employment exposure on or after November 1, 2004. After initially denying the
claim, it accepted aggravation of lumbar degenerative disc disease, with a date of injury of
November 15, 2004 file number xxxxxx015.2 On March 13, 2006 appellant filed a claim for
compensation (Form CA-7) for the period February 24 through July 27, 2005.
Relevant evidence for the period of disability claimed included various treatment records
and reports from appellant’s orthopedist, Dr. Small, who examined her on February 14, 2005 and
diagnosed low back pain secondary to mechanical instability and radiculopathy with trochanteric
bursitis. Dr. Small noted that appellant’s x-rays revealed severe degenerative changes
throughout the lumbar spine. He ordered physical therapy and also prescribed Celebrex, Soma,
Darvocet and Medrol Dosepak. Dr. Small advised appellant to return for a follow-up visit after
completing physical therapy. On a preprinted form report he checked the appropriate boxes
indicating that her work status had changed and that she was temporarily totally disabled until
her next visit.
Appellant did not see Dr. Small again until May 2, 2005. In the interim, she had
undergone gallbladder surgery on March 4, 2005 and subsequently developed a portal vein blood
clot. Pursuant to Dr. Small’s earlier recommendation, appellant began a five-week course of
physical therapy on March 28, 2005.3
When appellant returned on May 2, 2005, Dr. Small noted continued complaints of
mostly severe back pain with radiation into the left leg. He explained that because of this pain,
she had been off work since he last saw her on February 24, 2005.4 Dr. Small also noted that
appellant had undergone physical therapy, but it did not really help her. He indicated that she
had not suffered a new injury, but merely a recurrence of her original injury. Dr. Small further
explained that appellant had not recovered from her original disability and although she returned
1

Appellant also sustained an employment-related lumbosacral sprain on May 13, 1991, file number xxxxxx236.

2

The Office’s March 10, 2006 acceptance was based on the July 8, 2005 report of Dr. Samuel D. Small, an
orthopedic surgeon who had been treating appellant since June 23, 2000.
3

The Office authorized the physical therapy under appellant’s December 5, 1990 injury claim.

4

The record includes a preprinted disability assessment signed by Dr. Small on February 28, 2005. The top of
the preprinted form identifies the date as February 24, 2005. However, there are no corresponding treatment records
indicating that Dr. Small examined appellant during the latter part of February 2005 and appellant specifically
indicated that she did not see Dr. Small between February 14 and May 2, 2005.

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to a light-duty position, he had recommended in October 2003 that she take a medical retirement.
He stated that she continued to experience back pain, which he never expected to go away.
Dr. Small diagnosed lumbar disc disease with instability and an altered gait. He indicated that it
was not unusual for there to be recurrence and, in fact, it would be surprising if there were not a
recurrence. Dr. Small advised that appellant’s current diagnosis was the same as her original
injury, plus she had since developed trochanteric bursitis. He explained that the latter condition
was not unusual because she had an altered gait. Although the bursitis was originally on the
right side, it was now bilateral. Appellant’s main complaint, however, was back pain with
radicular symptoms. Dr. Small stated that she was certainly not improved at that point. He
recommended an updated magnetic resonance imaging (MRI) scan and electrodiagnostic (EMG)
and nerve conduction velocity studies. Dr. Small also indicated that appellant was temporarily
totally disabled until her next visit.5
A June 10, 2005 lumbar MRI scan revealed levoscoliosis, degenerative disc changes
throughout the lumbar spine, greatest at L1-2, L2-3 and L5-S1 and retrolisthesis throughout.
These latest findings represented an increase in comparison to appellant’s December 17, 2002
MRI scan.
In a July 8, 2005 letter to the Office, Dr. Small indicated that he had found appellant
permanent and stationary as of October 30, 2003. He further indicated that she was apparently
sent back to what was referred to as light duty, but it was his understanding that when she
returned to work on November 1, 2004, her duties included various and sundry lifting, pushing,
pulling and bending at the waist repetitively. Dr. Small explained that this certainly would not
be light duty in his opinion. Assuming he had received accurate information about appellant’s
workload, Dr. Small stated that her work had certainly contributed to the further deterioration of
her spine. Dr. Small also discussed the June 10, 2005 lumbar MRI scan, noting that the
radiologist had reported increased findings since appellant’s prior MRI scan. In summary, he
explained that there was physical evidence that appellant’s condition had worsened in the
intervening years and she did not become symptomatic until returning to work on November 1,
2004, thus indicating that was indeed when the changes occurred. Dr. Small believed that this
information confirmed that there was a causal relationship between her condition and the
employment duties she performed on or after November 1, 2004.6
In a May 2, 2006 report, Dr. Small noted that it had come to his attention that appellant
had not been paid for the period of time when she was temporarily totally disabled last year. He
explained that, during the period of February 24 to July 21, 2005, she was disabled from
significant pain from exacerbation of her lumbar spine problem and severe bilateral trochanteric
bursitis. Dr. Small noted that appellant was refractory to treatment for this and because she was
on Coumadin, intertrochanteric injection therapy was not performed. He further noted that she
also had significant mobility problems at that time and was unable to perform her usual and
customary duties. In closing, Dr. Small stated that he hoped his letter was enough to substantiate
the fact that appellant was temporarily totally disabled from February 24 to July 21, 2005
5

Dr. Small utilized the same preprinted form as he had on February 14, 2005.

6

As previously indicated, supra note 2, Dr. Small’s July 8, 2005 report was the basis for the Office’s acceptance
of the claim for aggravation of lumbar degenerative disc disease.

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secondary to not only lumbar spine pathology but bilateral trochanteric bursitis, pain and
decreased mobility.
By decision dated May 19, 2006, the Office denied appellant’s claim for wage-loss
compensation for the period February 24 through July 27, 2005. It noted, among other things,
that Dr. Small’s May 2, 2006 medical opinion was not “contemporaneous” to the period of
February 24 through July 27, 2005 and, therefore, it was of “no value in establishing disability
for the five[-]month period in question.”
On March 4, 2007 appellant requested reconsideration. Additional evidence included a
June 16, 2005 EMG that was consistent with a chronic left L4 radiculopathy. The Office also
received treatment notes from Dr. Small dated July 7 and 25, 2005 and an amended copy of the
physician’s May 2, 2006 report.7
The July 7, 2005 treatment notes indicated that appellant was seen for follow up
regarding her low back pain. She reported that her back was unchanged, but the pain in her legs
was somewhat improved. Appellant’s chief complaint was severe left hip pain. Dr. Small noted
that recent objective studies were positive for L4 radiculopathy and a new lumbar MRI scan was
significantly worse than her prior MRI scan. He diagnosed left hip bursitis and low back pain
secondary to severe discogenic changes with radiculopathy. Dr. Small explained that appellant
recently had gallbladder removal, which was complicated by a blood clot in the portal vein.
Because she was currently taking Coumadin, Dr. Small indicated that he was concerned about
giving appellant an injection in the trochanteric bursa. Instead, he prescribed Lidocaine and
advised appellant to return in about six weeks. Appellant returned on July 25, 2005, at which
time Dr. Small released her to resume work. He imposed a 10-pound lifting restriction and
precluded any bending or twisting. Dr. Small also indicated that appellant should be permitted to
stand and sit at will. Additionally, he prescribed an ergonomically correct chair. Lastly,
Dr. Small instructed appellant to return on an as needed basis.
In a decision dated August 14, 2007, the Office denied modification of its May 19, 2006
decision. The senior claims examiner speculated that appellant’s advancing age was perhaps
responsible for the recent changes in her accepted condition of degenerative disc disease. She
also noted that there was some “indication” that appellant’s March 2005 gallbladder surgery
immobilized her for a period of time. In denying modification, the Office found that the
evidence was still insufficient to establish that appellant was unable to work from February 24 to
July 27, 2005.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.8 For wage-loss benefits, the claimant must submit medical evidence
7

Dr. Small’s May 2, 2006 report was amended to reflect a period of disability from February 24 through July 27,
2005, rather than an end date of July 21, 2005 as previously reported.
8

20 C.F.R. § 10.115(e) (2008); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

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showing that the condition claimed is disabling.9 The evidence submitted must be reliable,
probative and substantial.10
ANALYSIS
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature and the Office is not a disinterested arbiter. While the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the evidence
to see that justice is done.11 Appellant’s long-time orthopedist, Dr. Small, provided a patchwork
of treatment records and reports that when viewed in their entirety arguably support her claim for
employment-related disability during the period February 24 through July 27, 2005.12 However,
Dr. Small has not provided a single comprehensive narrative report explaining how and why her
accepted condition precluded her from working during the claimed five-month period in 2005.
Although his various reports and treatment records are insufficient to discharge appellant’s
burden of proving that the claimed period of disability is employment related, the evidence is
sufficient to require further development of the case record by the Office.13 On remand, the
Office should refer her to an appropriate orthopedic specialist for an evaluation and a
rationalized medical opinion on whether she was totally disabled from February 24 through
July 27, 2005 due to her accepted employment-related injury. After such further development of
the case record as it deems necessary, a de novo decision shall by issued.
CONCLUSION
The Board finds that the case is not in posture for decision.

9

Id. at § 10.115(f).

10

Id. at § 10.115.

11

Horace L. Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell,
34 ECAB 1223 (1983).
12

The Office’s speculation that the recent changes in appellant’s degenerative condition were age related is
inconsistent with its earlier acceptance of the claim for aggravation of degenerative disc disease based on
Dr. Small’s July 8, 2005 report. Also, it is unclear what medical evidence the Office considered an “indication” that
appellant’s gallbladder surgery immobilized her for a period of time. This surgery occurred in early March 2005
and she was undergoing physical therapy for her back within a few weeks’ time. Furthermore, the Office’s initial
rejection of Dr. Small’s May 2, 2006 report merely because it was not “contemporaneous” to the period of disability
claimed is baseless. On that theory, any physician’s retrospective view of a claimant’s case record would similarly
be of “no value.”
13

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

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ORDER
IT IS HEREBY ORDERED THAT the August 14, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: August 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

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

Docket No. 13-1105
Issued: July 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 26, 2013 appellant timely appealed the October 1, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied modification of a prior
wage-earning capacity determination. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether appellant established a basis for modifying OWCP’s March 13,
1998 loss of wage-earning capacity determination (LWEC).
1
2

5 U.S.C. §§ 8101-8193.

The record includes evidence received after the October 1, 2012 decision. The Board is precluded from
considering evidence that was not already part of the record when OWCP issued its final decision. 20 C.F.R.
§ 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 61-year-old former welder, injured his left thumb and wrist in the
performance of duty on April 12, 1994.3 OWCP initially accepted his traumatic injury claim for
left thumb ulnar collateral ligament tear. On April 15, 1994 appellant underwent OWCPapproved surgery to repair the left thumb ligament damage.4 The employing establishment
provided light-duty work for a period of time, but ultimately terminated him effective
October 28, 1994. Thereafter, OWCP paid wage-loss compensation and placed appellant on the
periodic rolls.
Although unable to resume his regular duties as a welder, appellant was not totally
disabled from all gainful employment. In August 1997, he secured private-sector employment as
a container maintenance mechanic with the International Longshoremen’s Association (ILA).5
The work was sporadic at first, but after successfully completing a 90-day probationary period
appellant began working full time for ILA in early December 1997.
By decision dated March 13, 1998, OWCP determined that appellant’s full-time
reemployment with ILA fairly and reasonably represented his wage-earning capacity. Effective
December 7, 1997, appellant earned $520.00 per week as a container maintenance mechanic
which was less than what he had previously earned as a welder.6 Accordingly, OWCP
compensated appellant based on his loss in wage-earning capacity (LWEC).
In August 1998, OWCP granted a schedule award for 55 percent impairment of the left
thumb. The award covered a period of 41.25 weeks from July 19, 1998 through May 3, 1999.
OWCP suspended payment of wage-loss compensation during the period of the schedule award.
When the schedule award expired, OWCP resumed payment of wage-loss compensation in
accordance with the March 13, 1998 LWEC determination. Appellant continued to work as a
container maintenance mechanic through October 2005.7
On August 4, 2009 OWCP expanded appellant’s claim to include left wrist posttraumatic degenerative arthritis as an accepted condition. The decision to include appellant’s left
wrist condition was supported by the June 25, 2009 report of Dr. Bright McConnell, III, a Boardcertified orthopedic surgeon and OWCP referral physician, who examined appellant on June 5,
2009 and obtained a June 17, 2009 left wrist computerized tomography (CT) scan. In addition to
the accepted left thumb injury, Dr. McConnell diagnosed probable post-traumatic degenerative
arthritis, left wrist. He surmised that appellant had also sustained injury to his left wrist on
3

Appellant was letting down welding leads when the leads slipped. The injury occurred when his left hand
became entangled between the leads and a handrail.
4

OWCP also approved an April 26, 1994 follow-up surgical procedure.

5

The position was described as a light-duty version of a welder which appellant’s treating physician approved.

6

OWCP determined that appellant’s earnings as a container maintenance mechanic represented 87 percent of the
current wages of his date-of-injury position as a welder.
7

Appellant has reportedly not worked since October 2005. He continued to receive wage-loss compensation
from OWCP based on the March 13, 1998 LWEC determination.

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April 12, 1994.8 In a July 22, 2009 report, appellant’s treating physician, Dr. Howard L.
Brilliant, reviewed Dr. McConnell’s report and concurred with his finding that appellant
probably also injured his left wrist and developed secondary osteoarthritis.9
In June 2012, appellant’s then-representative filed a request for modification of the
March 13, 1998 LWEC determination. He argued that an increase in compensation was
warranted due to a material change in the nature and extent of appellant’s injury-related
condition. The evidence that purportedly supported modification was a May 19, 2011 report
from Dr. Dowse D. Rustin, a Board-certified orthopedic surgeon and OWCP referral physician.
Dr. Rustin examined appellant at OWCP’s request to determine if any of the accepted
conditions had resolved and whether appellant was capable of resuming his date-of-injury
position as a welder.10 In his May 19, 2011 report, he described appellant’s condition as
gamekeeper’s thumb with disruption of the ulnar collateral ligament. Dr. Rustin further
indicated that it appeared appellant had also injured his left wrist with remote fractures and
injury to the scapholunate ligament. He stated that appellant could not return to active
employment as a welder. Dr. Rustin explained that appellant would have some difficulty with
use of his left hand even doing light supportive work for his dominant right hand.
In a July 25, 2012 development letter, OWCP explained the legal criteria for modification
of an LWEC determination. It advised appellant that, if he believed his medical condition had
worsened, he must submit medical documentation to substantiate disability.11 Appellant was
initially afforded 30 days to submit the requested information. His representative later requested
a 30-day extension which OWCP granted. However, appellant’s representative did not
subsequently submit any additional evidence or argument in support of modification.12
Appellant resubmitted a March 2009 report and an undated Form OWCP-5c from his
treating physician, Dr. Brilliant. In a report dated March 30, 2009, Dr. Brilliant noted that he had
not seen appellant in almost two years and that his condition had essentially remained the same.
He commented that appellant could not use his left hand for much of anything. Dr. Brilliant
further indicated that it was not likely appellant could do much of anything in the way of work
because of his limited education and his hand problem. The undated work capacity evaluation
8

Dr. McConnell also submitted a June 25, 2009 work capacity evaluation (Form OWCP-5c) that limited left-hand
reaching and reaching above shoulder to one to two hour(s). He also limited left-hand lifting to one to two hour(s)
with a five-pound weight restriction. Lastly, Dr. McConnell imposed a one-to-two hour limitation on repetitive
wrist movement. However, he did not indicate whether this restriction was specific to the left upper extremity only.
9

Dr. Brilliant is a Board-certified orthopedic surgeon. He initially examined appellant on June 1, 1995 at
OWCP’s behest. Pursuant to appellant’s request, OWCP subsequently authorized continued treatment with
Dr. Brilliant.
10

The referral was accompanied by an April 21, 2011 statement of accepted facts (SOAF).

11

In a June 18, 2012 letter to both appellant and his representative, OWCP noted, inter alia, that, although
Dr. Rustin stated that appellant was unable to return to work as a welder, he had not stated that appellant was unable
to work in any capacity.
12

He later withdrew as appellant’s representative before OWCP.

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(OWCP-5c) was initially received on July 31, 2009.
permanent work restrictions of “no use of left hand.”

At the time, Dr. Brilliant imposed

Appellant also resubmitted a copy of Dr. McConnell’s June 25, 2009 narrative report and
OWCP-5c, as well as the results of the June 17, 2009 left wrist CT scan.
By decision dated October 1, 2012, OWCP denied appellant’s claim for additional wageloss compensation.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on LWEC.13 An employee’s actual earnings
generally best reflect his wage-earning capacity.14 Absent evidence that actual earnings do not
fairly and reasonably represent the employee’s wage-earning capacity, such earnings must be
accepted as representative of the individual’s wage-earning capacity.15 Compensation payments
are based on the wage-earning capacity determination, and OWCP’s finding remains undisturbed
until properly modified.16
Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part time
(unless the claimant was a part-time worker at the time of injury) or sporadic in nature;
(3) whether the job is seasonal in an area where year-round employment is available; and
(4) whether the job is temporary where the claimant’s previous job was permanent.17
Assuming the position is both vocationally and medically suitable and conforms to the
above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after he has successfully performed the required duties for at least 60 days.18
Modification of an LWEC determination is unwarranted unless there is a material change
in the nature and extent of the injury-related condition, the employee has been retrained or

13

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

14

Hayden C. Ross, 55 ECAB 455, 460 (2004).

15

Id.

16

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a (October 2009).
18

Id. at Chapter 2.814.7c(1).

4

otherwise vocationally rehabilitated or the original determination was erroneous.19 The burden
of proof is on the party seeking modification of the wage-earning capacity determination.20
ANALYSIS
In a March 13, 1998 decision, OWCP determined that appellant’s full-time
reemployment as a container maintenance (mechanic) worker fairly and reasonably represented
his wage-earning capacity. Effective December 7, 1997, appellant earned $520.00 per week
from his private-sector employer, ILA. Because his actual earnings with ILA were less than the
then-current pay rate of his date-of-injury position as a welder, OWCP paid appellant wage-loss
compensation based on his LWEC. Appellant continued to work as a container maintenance
mechanic through October 2005, and has not worked since. It is unclear why he stopped work
entirely in October 2005. OWCP has continued to pay appellant wage-loss compensation based
on the March 13, 1998 LWEC determination.
In his June 11, 2012 petition for modification, appellant’s then-representative argued that
modification was warranted because of a material change in appellant’s injury-related condition.
He cited Dr. Rustin’s May 19, 2011 finding of “left wrist ... remote fractures and injury to
scapholunate ligament” as evidence of a material change sufficient to require additional
compensation. Dr. Rustin also indicated that appellant could not return to active employment as
a welder. In its June 18, 2012 response, OWCP correctly noted that Dr. Rustin had not stated
that appellant was unable to work in any capacity. It subsequently afforded appellant the
opportunity to submit additional evidence and/or argument in support of modification.
Specifically, appellant was advised to submit medical evidence demonstrating injury-related
disability.
OWCP subsequently received additional copies of various medical evidence and reports
that had previously been submitted. Additionally, appellant argued that OWCP’s August 2009
expansion of the claim to include a left wrist condition was proof that the March 13, 1998 LWEC
determination was erroneous. He also argued that OWCP’s belated acceptance of an
employment-related left wrist condition demonstrated a material change in his injury-related
condition. Appellant claimed that his condition had materially worsened and he could not work
as a welder or work in any light-duty capacity.
Appellant essentially argued that OWCP failed to consider the full extent of his April 12,
1994 employment injury, and therefore, the LWEC determination was erroneous. The fact that
appellant subsequently developed degenerative arthritis in his left wrist does not demonstrate that
the March 13, 1998 LWEC determination was erroneous. The June 2009 evidence which
justified expansion of the claim postdated appellant’s employment injury by more than 15 years.
This same evidence postdated the March 1998 LWEC decision by at least 11 years. OWCP’s
March 13, 1998 LWEC determination is not erroneous merely because appellant subsequently
developed degenerative arthritis in his left wrist.

19

Tamra McCauley, 51 ECAB 375, 377 (2000).

20

Id.

5

Appellant has not submitted any evidence or argument that might otherwise demonstrate
that his work as a container maintenance mechanic was not vocationally and/or medically
suitable. Moreover, he has not argued nor does the record support that his position with ILA was
inconsistent with any of OWCP’s specific criteria for determining if a position fairly and
reasonably represents the injured employee’s wage-earning capacity.21 An employee’s actual
earnings generally best reflect his or her wage-earning capacity.22 Since returning to work in
1997, appellant was employed for approximately eight years as a container maintenance
mechanic. There is no indication from the record that his October 2005 work stoppage was
related to the April 12, 1994 employment injury.
Appellant also argued that modification was appropriate because he had been retrained or
otherwise vocationally rehabilitated. However, he has not identified what, if any, retraining
and/or vocational rehabilitation he purportedly received since his full-time reemployment with
ILA in December 1997. As noted, appellant subsequently worked for almost eight years as a
container maintenance mechanic and then stopped work without explanation.
Appellant also failed to establish a material change in his injury-related condition such
that he was no longer capable of performing his limited-duty position as a container maintenance
mechanic. He claimed that his employment-related left upper extremity condition precluded
work as a welder or work in any light-duty capacity. While the record supports that appellant is
unable to perform his date-of-injury position as a welder, the record does not establish that he is
presently incapable of performing the duties of a container maintenance (mechanic) worker for
which he was rated in March 1998. Although he has since developed left wrist post-traumatic
degenerative arthritis, the medical evidence does not establish a material change in appellant’s
employment-related left thumb/wrist condition such that he is presently incapable of performing
his previous limited-duty position. Dr. Rustin’s May 19, 2011 report, which appellant’s prior
representative cited as evidence of a material change, did not even reference the fact that
appellant had been reemployed as a container maintenance mechanic for approximately eight
years. Appellant also cited earlier reports from Dr. Brilliant and Dr. McConnell. However, their
respective reports and work capacity evaluations (OWCP-5c) do not clearly establish that
appellant was incapable of performing his limited-duty assignment as a container maintenance
mechanic. At the time, Dr. McConnell noted that appellant was capable of working with certain
left hand restrictions. Dr. Brilliant’s undated OWCP-5c provided no explanation for the noted
permanent work restriction of “no use of left hand.”
The Board finds that appellant has failed to satisfy his burden of proof in seeking
modification of the March 13, 1998 LWEC determination. Appellant may request modification
of the wage-earning capacity determination, supported by new evidence or argument, at any time
before OWCP.

21

See supra note 17.

22

Hayden C. Ross, supra note 14.

6

CONCLUSION
Appellant has not established a basis for modifying OWCP’s March 13, 1998 wageearning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the October 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Pearl Harbor, HI, Employer
__________________________________________

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

Docket No. 07-2316
Issued: March 18, 2008

Case Submitted on the Record

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

JURISDICTION
On September 11, 2007 appellant filed a timely appeal from the July 31, 2007 decision of
the Office of Workers’ Compensation Programs denying his claim for a schedule award for his
employment-related hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable employment-related hearing loss thereby
entitling him to a schedule award.
FACTUAL HISTORY
On January 31, 2007 appellant, a 60-year-old painter, filed an occupational disease claim,
(Form CA-2), alleging that his exposure to high noise levels in the shops and work site locations
where he worked caused his hearing loss. He retired in February 2007.

The employing establishment submitted annual hearing conservation data and noise
exposure information from 1980. Appellant provided information about his history of noise
exposure at the employing establishment and previous employers, starting in 1965.
The Office referred appellant for a medical examination to determine the relationship
between his hearing loss and his federal duties. On April 23, 2007 Dr. Meredith Pang, a Boardcertified otolaryngologist, examined him and reviewed his medical history. She noted that
appellant had worked at the employing establishment since December 1980, where he was
exposed to occupational noise levels above 85 decibels and had no significant exposure to
gunfire, blasting or jet engine noise prior to that time. Dr. Pang found no history of loud
recreational noise exposure, vertigo, inherited hearing loss or systematic illness associated with
hearing loss. She noted that appellant’s first audiogram, dated October 15, 1980, showed mild
high frequency hearing loss in the right ear and mild to moderate loss in the left ear. Dr. Pang
found that appellant’s hearing had worsened since that time.
On examination, Dr. Pang found that appellant’s tympanic membranes were intact and
had good mobility, with slight right anterior scarring on the anterior membrane. She found no
ear canal lesion that would contribute to hearing loss. Dr. Pang noted that the Rinne test was
positive bilaterally and that the Weber tuning fork test lateralized to the right at 256 hertz (Hz)
and remained midline at 512 Hz. The audiogram revealed a mild mix of low and high frequency
hearing loss, caused by both middle ear and sensorineural losses, in the right ear. The left ear
had moderate high frequency sensorineural hearing loss. Appellant’s speech reception
thresholds were normal for both ears, but his speech discrimination scores were only at
80 percent in his left ear. Dr. Pang opined that the final audiometric test results were consistent
and reliable. She found that appellant’s history of noise exposure was sufficient in intensity and
duration to have aggravated his hearing loss. Dr. Pang stated that appellant’s hearing loss was
stable and would not improve. She also found that appellant had 0 percent impairment, because
his hearing loss was not severe enough to exceed the threshold amount indicated by the Office’s
formula.
By decision dated May 9, 2007, the Office accepted appellant’s claim for bilateral
hearing loss. On May 29, 2007 the Office provided the medical records, including Dr. Pang’s
report and audiograms, to the Office medical adviser for a schedule award determination.
On June 16, 2007 Dr. David Schindler a Board-certified otolaryngologist serving as an
Office medical adviser, opined that appellant’s diagnosis of bilateral high-frequency hearing
loss, consistent with noise exposure, was causally related to factors of his federal employment.
He noted that appellant’s April 23, 2007 audiogram, which measured hearing loss at 500, 1,000,
2,000 and 3,000 Hz, revealed right ear losses of 15, 15, 15 and 25 decibels and left ear losses of
10, 10, 10 and 55 decibels, respectively. Applying the Office’s hearing loss standards,
Dr. Schindler found that appellant had 0 percent right ear hearing loss, 0 percent left ear hearing
loss and 0 percent bilateral hearing loss. He stated that hearing aids were not indicated by
appellant’s current hearing loss.
By decision dated July 31, 2007, the Office denied appellant’s claim for a schedule award
on the grounds that the medical evidence established that he had no compensable impairment

2

from his accepted bilateral hearing loss. It found that appellant’s hearing loss was within the
normal range of conversational volume.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body.1 However, the Act does not specify the manner in which the percentage of loss is to be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.3 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at
each frequency are added up and averaged.4 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.5 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.7 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.8
ANALYSIS
The Office referred appellant to Dr. Pang, a Board-certified otolaryngologist, for a
second opinion on the cause of his hearing loss. Based on Dr. Pang’s opinion, the Office
accepted appellant’s claim for a bilateral hearing loss. The Office then properly referred the
medical record to Dr. Schindler, an Office medical adviser. He reviewed Dr. Pang’s report and
properly utilized the A.M.A., Guides to determine whether appellant sustained a compensable
1

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.404.

2

20 C.F.R. § 10.404.

3

A.M.A., Guides 246-51 (5th ed., 2001).

4

Id.

5

Id.

6

Id.

7

Id.

8

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

3

hearing loss. Dr. Schindler added the right ear decibel losses recorded at 500, 1,000, 2,000 and
3,000 Hz, which were 15, 15, 15 and 25 decibels, respectively, for a total of 70 decibels. When
divided by 4, the result is an average hearing loss of 16.25 decibels. The average loss was then
reduced by the “fence” of 25 decibels to equal 0, which, when multiplied by the established
factor of 1.5, results in a 0 percent monaural hearing loss for the right ear. Testing for the left ear
at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 10, 10, 10
and 55 decibels, respectively, for a total of 85 decibels. When divided by 4, the result is an
average hearing loss of 21.25 decibels. The average loss was then reduced by the “fence” of 25
decibels to equal 0, which, when multiplied by the established factor of 1.5, results in a 0 percent
monaural hearing loss for the left ear. Consequently, the evidence of record establishes that
appellant has no ratable hearing loss in either ear. The Board finds that the Office properly
determined that appellant’s employment-related hearing loss was not significant enough to be
ratable. Thus, he was not entitled to a schedule award.
CONCLUSION
The Board finds that appellant does not have a ratable employment-related bilateral
hearing loss; therefore, he is not entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 31, 2007 is affirmed.
Issued: March 18, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 19-1185
Issued: November 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 3, 2019 appellant filed a timely appeal from a January 16, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
binaural hearing loss causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 14, 2018 appellant, then a 53-year-old deputy project superintendent, filed
an occupational disease claim (Form CA-2) alleging that he had developed binaural hearing loss
1

5 U.S.C. § 8101 et seq.

due to exposure to hazardous noise in the course of his federal employment. He noted that he first
became aware of his claimed condition and its relation to his federal employment on
September 5, 2013.
In support of his claim, appellant provided an April 4, 2017 report from Dr. Todd Jones,
an otolaryngologist, who noted gradual hearing loss and that appellant first became aware of same
in 2013. He denied tinnitus or vertigo. Dr. Jones diagnosed sensorineural hearing loss and
recommended hearing aids. Appellant also underwent an audiogram on February 22, 2017. He
provided a September 5, 2013 audiogram and audiologic report which diagnosed asymmetrical
hearing loss.
In an October 24, 2018 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond. In a separate
development letter of even date, it requested that the employing establishment provide comments
from a knowledgeable supervisor on the accuracy of his statements, describe the sources of
exposure to noise, and provide a copy of all medical examinations and audiograms pertaining to
hearing or ear problems. OWCP again afforded appellant 30 days to respond.
On October 26, 2017 appellant provided his employment history as a sheet metal mechanic
from 1982 through 1987, a ship fitter from 1987 through 1997, and as a deputy project
superintendent beginning in 1997. He alleged that he was exposed to noise from chippers,
grinders, sandblasters, as well as to noise from ship checks and job oversite on the waterfront. On
October 30, 2018 appellant responded to OWCP’s questions and noted that his hearing loss was
detected during the annual hearing test administered by the employing establishment.
On November 12, 2018 the employing establishment provided copies of appellant’s yearly
audiogram findings from August 4, 1984 through September 5, 2013.
On December 14, 2018 OWCP referred appellant, a statement of accepted facts (SOAF),
and otologic evaluation, for an audiogram and second opinion evaluation with Dr. Edward Treyve,
a Board-certified otolaryngologist.
In his January 3, 2019 report, Dr. Treyve reviewed appellant’s history of employmentrelated noise exposure and his audiogram. He found mild-to-moderate high-frequency
sensorineural loss on the right and moderate-to-severe sensorineural loss on the left. Dr. Treyve
diagnosed binaural asymmetric sensorineural hearing loss. He opined that appellant’s hearing loss
was not related to occupational noise exposure. Dr. Treyve noted that occupational noise-induced
hearing loss was typically fairly symmetric, while appellant had left-sided high-frequency hearing
loss dating back to 2004 with normal hearing in the right ear through 2013. He also noted that
occupational noise-induced hearing loss did not typically manifest late in the career and that
appellant’s hearing on the right was normal in 2013, 31 years after the start of employment.
Dr. Treyve further noted that during appellant’s last 21 years of employment he had minimal noise
exposure. He concluded that the cause of appellant’s current hearing loss on the right was
presbycusis. Dr. Treyve further determined that the asymmetry of hearing loss on the left was
related to causes other than occupational noise exposure or presbycusis such as a possible
retrocochlear lesion. He found that while workplace exposure was of sufficient intensity and

2

duration to have contributed to appellant’s hearing loss, he did not believe that it did so, due to
mitigation through proper ear protection.
By decision dated January 16, 2019, OWCP accepted that appellant had noise exposure
during the course of his federal employment and accepted that the medical evidence supported
binaural high frequency sensorineural hearing loss. However, it denied his occupational disease
claim finding that the medical evidence of record failed to establish causal relationship between
his hearing loss and his accepted employment exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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,3 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.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In an occupational disease claim, to establish that an injury was sustained in the
performance of duty, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition;6 (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed;7 and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6
C.C., Docket No. 18-1229 (issued March 8, 2019); Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB
468 (2001).
7

R.A., Docket No. 16-1218 (issued November 10, 2016); Michael R. Shaffer, 55 ECAB 386 (2004).

8

T.J., Docket No. 17-1850 (issued February 14, 2018); Beverly A. Spencer, 55 ECAB 501 (2004).

9

M.B., Docket No. 17-1999 (issued November 13, 2018).

3

physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10 Neither the condition becoming apparent during a period of
employment, nor the belief of the employee that the hearing loss was causally related to noise
exposure in federal employment, is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
OWCP referred appellant to Dr. Treyve for a second opinion evaluation regarding
appellant’s hearing loss claim. Dr. Treyve concluded that appellant did not have sensorineural
hearing loss due to his federal employment. In a report dated January 3, 2019, he related
examination findings, reviewed the SOAF and diagnosed bilateral sensorineural hearing loss with
asymmetry involving the left ear. Dr. Treyve noted that occupational noise exposure was typically
fairly symmetric and opined that the hearing loss in appellant’s left ear was not related to
occupational noise, but rather was related to a possible retrocochlear lesion.
The Board finds that Dr. Treyve’s January 3, 2019 report represents the weight of the
medical evidence and establishes that appellant’s sensorineural hearing loss was not due to
exposure to noise in the workplace.12 Dr. Treyve’s opinion is based on a proper factual and
medical history as he reviewed current audiometric test results and related his findings on
examination and testing in support of his opinion that appellant’s hearing loss was not due to the
exposure to noise in his federal employment.13
As the medical evidence of record is insufficient to establish that appellant had binaural
hearing loss causally related to the accepted factors of his federal employment, appellant has not
met his burden of proof.14

10

T.K., Docket No. 19-0074 (issued May 15, 2019); M.L., Docket No. 18-1605 (issued February 26, 2019).

11

C.C., supra note 6.

12
T.K., supra note 10; R.B., Docket No. 18-0720 (issued November 13, 2018); see R.J., Docket No. 11-1644 (issued
February 14, 2012); J.L., Docket No. 07-1740 (issued December 20, 2007).
13

R.B., id.; see R.J., id.; J.L., id.

14

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

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed binaural hearing loss causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., claiming as widow of C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 18-1142
Issued: July 2, 2019

Case Submitted on the Record

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

JURISDICTION
On May 15, 2018 appellant, through counsel, filed a timely appeal from a March 26, 2018
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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of the employee’s bilateral lower extremities, warranting a schedule award; and
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.

(2) whether appellant has met her burden of proof to establish permanent impairment of the
employee’s left upper extremity, warranting a schedule award.
FACTUAL HISTORY
On September 16, 1997 the employee, then a 53-year-old regular rural carrier, filed a
traumatic injury claim (Form CA-1) alleging that, on September 10, 1997, he injured his left
shoulder, upper back, and lower back when he was involved in a motor vehicle accident while in
the performance of duty. He subsequently worked modified duty.
OWCP accepted the employee’s claim for trapezius strain of the left shoulder, cervical
strain, lumbar strain, and L5-S1 herniation.
The employee subsequently underwent the following surgical procedures: bilateral L5-S1
decompression and microscopic discectomy on March 17, 1998; lumbar fusion surgery at L4-5
and L5-S1; T10 and T11 laminectomy on August 19, 2008; and L3-4 bilateral decompressive
laminectomy, lateral mass fusion, and a right L5-S1 hemilaminectomy and foraminotomy on
February 22, 2010.
On July 31, 2004 the employee stopped work because the employing establishment could
no longer accommodate his work restrictions. OWCP paid him wage-loss compensation on the
periodic rolls effective August 8, 2004.
The employee retired from federal service effective June 30, 2011.
On September 27, 2016 the employee filed a claim for a schedule award (Form CA-7).
In a letter dated October 3, 2016, the employee, through counsel, requested that OWCP
arrange an impairment rating examination for the employee because he was unable to travel and
had difficulty finding a doctor who would perform an impairment rating examination.
In an October 12, 2016 examination note, Dr. Farrukh Sair, Board-certified in pain
medicine and anesthesiology, related the employee’s complaints of chronic low back and neck
pain. He reviewed the employee’s history, including his previous surgical procedures. Upon
physical examination of the employee’s extremities, Dr. Sair observed normal movement of all
extremities with no bony abnormalities and no edema. Examination of the employee’s lumbar
spine demonstrated no paravertebral muscular tenderness and decreased extension. Dr. Sair
reported that examination of the employee’s hips showed tenderness of the bilateral sacroiliac (SI)
joints. He diagnosed lumbar post-laminectomy syndrome, low back pain, enthesopathy of the hip
region, and cervical spondylosis. The employee continued to receive medical treatment for his
complaints of chronic low back pain secondary to lumbar post-laminectomy pain syndrome and
neck pain secondary to cervical spinal stenosis and submitted examination notes. None of the
reports contained an impairment rating for purposes of a schedule award.
OWCP referred the employee, along with a statement of accepted facts and the medical
record to Dr. Seth Jaffe, a Board-certified orthopedist, for a second opinion examination in order
to determine whether he had sustained a ratable permanent impairment due to his accepted
September 10, 1997 employment injury in accordance with the sixth edition of the American
2

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)3 and
The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) (The Guides Newsletter).
In an April 11, 2017 report, Dr. Jaffe related that the employee had sustained a workrelated injury on September 10, 1997 and noted that his claim had been accepted for trapezius
strain of the left shoulder, cervical strain, lumbar strain, and herniation of the lumbar disc at L5-S1.
Upon examination of the employee’s lumbar spine, he observed tenderness with range of motion
in the paraspinal muscles and in the bilateral sacroiliac joints. Examination of the employee’s
bilateral lower extremities demonstrated motor strength of 5/5 and intact to light touch sensation.
Dr. Jaffe indicated that the neurological examination showed difficulty with heel and toe walking
and decreased sensation in the feet. Examination of the employee’s left shoulder showed
tenderness with range of motion, both over the deltoid and over the acromioclavicular (AC) joint.
Sensation was intact to light touch and muscle strength was 4/5. Dr. Jaffe diagnosed postlaminectomy syndrome and lumbago with sciatica on the left side.
Regarding the employee’s work-related injuries, Dr. Jaffe opined that his accepted left
shoulder and lumbar strains had resolved. He related that, according to the medical records, the
employee had reached maximum medical improvement (MMI) “[sometime] in 2005.” Dr. Jaffe
reported that, according to “[T]able 17” of the sixth edition of the A.M.A., Guides, the lumbar
spine regional grid, the employee was a class 3. He assigned grade modifiers of 3 for functional
history, 3 for physical examination, and 3 for clinical studies. Dr. Jaffe concluded that the
employee had a final permanent impairment rating of 19 percent to the lumbar spine.
Addendum notes were included at the conclusion of Dr. Jaffe’s report. In a May 3, 2017
note, Dr. Jaffe related that, according to the The Guides Newsletter, the employee had 16 percent
permanent impairment of the lower extremities due to moderate sensory deficits at L4, L5, and S1.
He explained that some of the employee’s other apportionment previously awarded were for other
deficits related to the spine and motor function non-nerve related. In a May 23, 2017 addendum
note, Dr. Jaffe reported that the apportionment of the employee’s 16 percent permanent
impairment rating of the lower extremities was 6 percent for L4, 6 percent for L5, and 4 percent
for S1 nerve roots for a total of 16 percent permanent impairment.
In a May 30, 2017 letter, the employee’s spouse informed OWCP that the employee had
died on May 8, 2017.
Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as an OWCP district
medical adviser (DMA), reviewed the employee’s claim, including Dr. Jaffe’s permanent
impairment rating. In a June 20, 2017 report, he noted that the employee’s claim had been accepted
for trapezius strain of the left shoulder, cervical strain, lumbar strain, and L5-S1 disc herniation.
Dr. Fellars related that the employee had documented 5/5 strength in his lower extremities and
normal sensation with nonfocal neurologic examination with respect to the spine. He further
reported that examination of the employee’s left shoulder showed pain with range of motion and
tenderness over the deltoid and AC joint. Muscle strength was 4/5. Dr. Fellars opined that,
according to The Guides Newsletter, proposed Table 2, the employee had zero percent lower
3

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

3

extremity permanent impairment. He explained that, although the employee may have significant
pain, based on the documentation, the employee had no sensory or motor disturbances to establish
a lower extremity impairment according to The Guides Newsletter. Dr. Fellars noted his
disagreement with Dr. Jaffe’s impairment rating as Dr. Jaffe documented that the employee had
5/5 strength and normal sensory examination, but also reported changes in sensation at L4, L5,
and S1. He reported that the employee had reached MMI on April 11, 2017.
By letter dated June 28, 2017, OWCP requested that Dr. Jaffe review Dr. Fellars’ June 20,
2017 report and provide clarification on whether the employee had work-related lower extremity
permanent impairment due to his accepted lumbar injury.
In a June 30, 2017 addendum report, Dr. Jaffe noted his disagreement with Dr. Fellars’
permanent impairment rating based on the fact that the employee had no sensory deficits on
examination. He explained that he did not just take into account the examination, but also
diagnostic studies. Dr. Jaffe indicated that the employee had an abnormal electromyography
(EMG) in 2009, abnormal x-rays, and abnormal scans. He reported that he continued to opine the
same as in his addendum notes from May 2017.
Dr. Fellars reviewed Dr. Jaffe’s June 30, 2017 addendum report and, in a July 18, 2017
report, noted that Dr. Jaffe’s reports contained contradictory statements. He indicated that on page
three of his report, Dr. Jaffe had documented normal strength and sensation as part of the
employee’s lumbar examination, but he later reported there was obvious impairment. Dr. Fellars
explained that per The Guides Newsletter, impairment is assigned based on examination, not the
imaging studies. He opined that because the employee’s examination revealed normal strength
and sensation, the employee had zero percent permanent impairment of each lower extremity due
to his accepted lumbar injury.
By decision dated July 20, 2017, OWCP denied the employee’s claim for a schedule award.
It found that the medical evidence of record failed to establish permanent impairment to his lower
extremities as a result of his accepted lumbar injury. OWCP determined that the weight of medical
evidence rested with Dr. Fellars, as the DMA, who found in his June 20 and July 18, 2017 reports,
that appellant had zero percent permanent impairment according to The Guides Newsletter.
On August 2, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
February 13, 2018.
By decision dated March 26, 2018, an OWCP hearing representative affirmed the July 20,
2017 schedule award decision.
LEGAL PRECEDENT -- ISSUES 1 & 2
The schedule award provisions of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
4

5 U.S.C. § 8107.

4

specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.6
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.7
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole.8 Furthermore, the back is specifically excluded
from the definition of organ under FECA.9 For peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP’s procedures indicate that the July/August 2009
edition of The Guides Newsletter is to be applied for rating spinal nerve impairments consistent
with sixth edition methodology.10 The Board has long recognized the discretion of OWCP to adopt
and utilize various editions of the A.M.A., Guides for assessing permanent impairment.11 In
particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of the employee’s bilateral lower extremities, warranting a schedule award.

5

20 C.F.R. § 10.404; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
7

Id. at Chapter 2.808.6; R.M., Docket No. 18-1313 (issued April 11, 2019); C.K., Docket No. 09-2371 (issued
August 18, 2010).
8

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

9

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

10

See G.N., Docket No. 10-0850 (issued November 12, 2010); supra note 6 at Chapter 3.700 (January 2010). The
Guides Newsletter is included as Exhibit 4.
11

D.S., Docket No. 14-0012 (issued March 18, 2014).

12

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

5

In reports dated June 20 and July 18, 2017, Dr. Fellars, serving as the DMA, noted
inconsistencies with Dr. Jaffe’s April 11, 2017 second opinion impairment rating as he
documented that the employee had 5/5 strength and normal sensory examination, but also reported
changes in sensation at L4, L5, and S1. He explained that, although the employee may have had
significant pain, the record revealed that he had no sensory or motor disturbances on examination
to establish lower extremity permanent impairment according to proposed Table 2 of The Guides
Newsletter. Thus, Dr. Fellars concluded that the employee had zero percent lower extremity
permanent impairment. He reported that the employee had reached MMI on April 11, 2017.
The Board has carefully reviewed the opinion of Dr. Fellars and finds that his June 20 and
July 18, 2017 reports were sufficiently rationalized to establish that the employee had zero percent
lower extremity permanent impairment due to his accepted lumbar injury. Dr. Fellars’ opinion
was based on a proper factual and medical history, which he reviewed, was based on an accurate
application of the A.M.A., Guides and The Guides Newsletter, and provided medical rationale for
his impairment rating. The Board finds that OWCP properly relied on the reports of Dr. Fellars to
find that the employee did not sustain permanent impairment of his bilateral lower extremities due
to his accepted lumbar injury.13 Appellant has not provided a rationalized medical opinion to
dispute Dr. Fellars’ impairment rating or create a conflict in medical opinion regarding whether
the employee has permanent impairment of his bilateral lower extremities due to his accepted
lumbar injury.14 As the medical evidence of record was insufficient to establish permanent
impairment of the employee’s bilateral lower extremities, appellant has not met her burden of
proof to establish a schedule award claim.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision regarding whether appellant
has met her burden of proof to establish permanent impairment of the employee’s left upper
extremity causally related to his accepted September 10, 1997 employment injury.
As explained above, Dr. Fellars opined in his June 20 and July 18, 2017 reports that the
employee had no permanent impairment of his bilateral upper extremities due to his accepted
September 10, 1997 lumbar injury. The Board, however, notes that while OWCP referred the
employee’s schedule award claim to Dr. Fellars and requested an impairment rating based on the
employee’s accepted lumbar conditions, it failed to ask him to address whether he sustained
permanent impairment due to his accepted left shoulder trapezius strain condition, for which he
also requested a schedule award. As counsel pointed out in the February 13, 2018 telephonic
hearing, Dr. Fellars had not mentioned this additional work-related left shoulder condition, nor did
13

See D.B., Docket No. 17-0930 (issued July 11, 2018).

14

When the examining physician does not provide an estimate of impairment conforming to the proper edition of
the A.M.A., Guides, OWCP may rely on the impairment rating provided by the medical adviser. See P.B., Docket
No. 17-1046 (issued January 2, 2018).

6

he provide an opinion on whether he sustained permanent impairment to his left upper extremity
as a result of the September 10, 1997 employment injury.15 The Board notes that Dr. Fellars noted
that examination of the employee’s left shoulder showed pain with range of motion, tenderness
over the deltoid and AC joint, and 4/5 muscle strength testing. Dr. Fellars failed to address these
examination findings even though the sixth edition of the A.M.A., Guides provides for permanent
impairment of the upper extremity due to left shoulder symptoms, such as shoulder pain and
shoulder strain.16
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.17 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.18 As OWCP did not request that Dr. Fellars address whether the employee had
permanent impairment of his left upper extremity causally related to his September 10, 1997
employment injury, his report is insufficient to resolve the pertinent schedule award issue in this
case. The Board, therefore, finds that the case must be remanded to OWCP. On remand OWCP
should request that Dr. Fellars provide a supplemental report in which he addresses whether the
employee has permanent impairment in accordance with the sixth edition of the A.M.A., Guides
and The Guides Newsletter due to all of his accepted September 10, 1997 employment injuries.
Following this and such further development deemed necessary, OWCP shall issue a de novo
decision on the employee’s schedule award claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of the employee’s bilateral lower extremities, warranting a schedule award. The Board
also finds that the case is not in posture for decision regarding whether appellant has met her
burden of proof to establish permanent impairment of the employee’s left upper extremity,
warranting a schedule award.

15
See B.A., Docket No. 17-1360 (issued January 10, 2018); see also C.S., Docket No. 16-1585 (issued
August 17, 2017).
16

See A.M.A., Guides, Table 15-5: Shoulder Regional Grid, 401-05.

17

See Vanessa Young, 56 ECAB 575 (2004).

18
Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).

7

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further action consistent with this decision of the Board.
Issued: July 2, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, Cherry Point, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1134
Issued: March 24, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2010 appellant filed a timely appeal from a December 10, 2009 schedule
award decision of the Office of Workers’ Compensation Programs and a January 19, 2010 Office
decision denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant has established that he is entitled to a greater than
one percent permanent impairment of the right upper extremity, for which he received a schedule
award; and (2) whether the Office properly determined that appellant’s request for
reconsideration was insufficient to warrant further merit review of the claim.
FACTUAL HISTORY
On September 10, 2008 appellant, then a 39-year-old machinist, filed a traumatic injury
claim alleging that on September 4, 2008 he injured his right shoulder while picking up a rotor

hub out of a box. The Office accepted the claim for right shoulder impingement and authorized
right shoulder surgery, which was performed on January 6, 2009.
In a June 10, 2009 report, Dr. Robert E. Coles, a treating Board-certified orthopedic
surgeon, diagnosed impingement syndrome. He also reported that appellant returned to work
with no restrictions. Dr. Coles related that appellant had occasional mild and minimal residual
symptoms. He concluded that appellant had a five percent permanent impairment of the right
upper extremity based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Coles stated that appellant reached
maximum medical improvement on May 7, 2009 in a July 23, 2009 note.
On June 17, 2009 appellant filed a claim for a schedule award.
The record contains an undated permanent impairment worksheet form report for the
upper extremity from Dr. Cole, who made a diagnosis-based impairment (DBI) rating of one
percent pursuant to the sixth edition of the A.M.A., Guides. Referring to Table 15-5 he
determined that appellant had a Class 1 impairment of his right upper extremity based on a
diagnosis of impingement syndrome and he identified Grade C as the appropriate grade for a
final impairment of five percent.
The evidence was referred to an Office medical adviser for review. On August 26, 2009
Dr. Howard P. Hogshead, an Office medical adviser and Board-certified orthopedic surgeon,
referenced Dr. Cole’s report and the reference to right shoulder arthroplasty surgery which
occurred on January 6, 2009. Using Table 15-5, page 401 he concluded that one percent
impairment for the right upper extremity was appropriate and July 29, 2009 as the date of
maximum medical improvement.
On November 2, 2009 the Office referred appellant to Dr. Donald D. Getz, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Drs. Cole and Hogshead on appellant’s right upper extremity impairment determination. In a
December 2, 2009 report, Dr. Getz reviewed the statement of accepted facts and medical records
and diagnosed status postoperative right shoulder impingement syndrome. A physical
examination revealed mild pain at extremes of right shoulder motion, particularly above the
shoulder, no evidence of mass or atrophy, no evidence of instability and mild tenderness to deep
palpation under the lateral posterior acromion. Range of motion for the right shoulder included
170 degrees flexion, 45 degrees extension, 40 degrees abduction and 90 degrees internal and
external rotation. Dr. Getz determined that appellant had a one percent right upper extremity
permanent impairment. He stated that he used the DBI instead of the range of motion method.
The rationale given for this choice was that he “considered the measured ranges of motion
invalid due to the prior rotator cuff surgery and the likelihood of some residual motion loss at the
end ranges due to this prior unrelated procedure.” Dr. Getz used Chapter 15 of the sixth edition
of the A.M.A., Guides and identified a Class 1 impairment with a default Grade C, for the class
of diagnosis (CDX) was one percent impairment of the upper extremity. He advised that had
represented a Grade Modifier 1 (Grade Modifier for Functional History -- GMFH). Dr. Getz
found a Grade Modifier 2 based on appellant’s physical examination findings (GMPE) and a
Grade Modifier 0 based on clinical studies (GMCS). He noted that, in order to determine the
final impairment under the sixth edition, he applied the Net Adjustment Formula (NAF): GMFH

2

(1) minus CDX (1) plus GMPE (2) minus CDX (1). Based on the formula, the net adjustment
modifier was zero Dr. Getz further explained that the result was a Class 1 with an adjustment of
zero which equaled a Class 1 default Grade C or a one percent right upper extremity impairment.
On December 8, 2009 another Office medical adviser agreed with the one percent right upper
extremity impairment rating.
By decision dated December 10, 2009, the Office issued a schedule award for a one
percent right upper extremity impairment. The award was for 3.12 weeks and the period of the
award was June 10 to July 1, 2009.
On December 19, 2009 appellant requested reconsideration and resubmitted medical
evidence considered by the Office, an April 20, 2009 pain disability index, an April 20, 2009
functional capacity evaluation and his statement.
By decision dated January 19, 2010, the Office determined that appellant’s request for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3 Effective
May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.4
Section 8123(a) of the Act5 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.6 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.

4

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
5

5 U.S.C. §§ 8101-8193

6

Id. at § 8123(a); Geraldine Foster, 54 ECAB 435 (2003); see J.J., Docket No. 09-27 (issued February 10, 2009).

3

specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.7
ANALYSIS -- ISSUE 1
The Office accepted the claim for right shoulder impingement and authorized right
shoulder surgery. On June 17, 2009 appellant filed a claim for a schedule award. Dr. Coles, a
treating Board-certified orthopedic surgeon, addressed the extent of appellant’s permanent
impairment and using Table 15-5, page 401 of the A.M.A., Guides sixth edition found a five
percent right upper extremity impairment. Dr. Hogshead, an Office medical adviser and Boardcertified orthopedic surgeon, reviewed this report and noted no impairment rating on page 401,
Table 15-5 that correlated to five percent but found that appellant had one percent impairment of
the right upper extremity using Table 15-5, page 401 of the A.M.A., Guides sixth edition. In fact
Dr. Cole used Table 15-5, page 403. Due to the difference of opinion regarding extent of
appellant’s permanent impairment between Dr. Coles and Dr. Hogshead, the Office medical
adviser, the Office determined there was a conflict in medical opinion evidence and referred
appellant to Dr. Getz, a Board-certified orthopedic surgeon, selected as the impartial medical
examiner to determine the extent of appellant’s right upper extremity impairment.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Section 15.2, entitled DBI, indicates that DBI is the primary method of
evaluation of the upper limb.8 The initial step in the evaluation process is to identify the
impairment class by using the corresponding diagnosis-based regional grid. Dr. Getz noted he
utilized Chapter 15 with the relevant section of the Shoulder Regional Grid, Table 15-5, A.M.A.,
Guides 402. He identified a Class 1 impairment based on shoulder impingement syndrome and
pain on terminal motions of the shoulder. Once the impairment class was determined based on
the diagnosis, the grade was initially assigned the default value, C. Under Table 15-5, the default
Grade, C, for a Class 1 impingement syndrome represents one percent upper extremity
impairment.9
After determining the impairment class and default grade, Dr. Getz determined whether
there were any applicable grade adjustments for so-called nonkey factors or modifiers. These
include adjustments for functional history (GMFH), physical examination (GMPE) and clinical
studies (GMCS). The grade modifiers are used in the NAF to calculate a net adjustment.10 The
final impairment grade is determined by adjusting the grade up or down from the default value C
by the calculated net adjustment. Dr. Getz then found, a Grade Modifier 1 for functional history
(GMFH), a Grade Modifier 1 for class of diagnosis-regional grid and a Grade Modifier 2 for
7

J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002);
B.P., Docket No. 08-1457 (issued February 2, 2009).
8

Section 15.2, A.M.A., Guides 387.

9

The Grades range from A to E, with A representing zero (0) percent upper extremity impairment, B and C
representing one (1) percent and D and E representing two (2) percent upper extremity impairment. Table 15-5,
A.M.A., Guides 402.
10

Net Adjustment = (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX). Section 15.3d, A.M.A., Guides 411.

4

physical examination (GMPE). As there were no relevant clinical studies (GMCS), the NAF for
this case is (GMFH - CDX or 1 -1 = 0) + (GMPE - CDX or 2 -1 = 1) + (GMCS - CDX or 0 -1 =
-1) which resulted in a zero net adjustment (0 + 1 + -1 = 0). On December 8, 2009 an Office
medical adviser reviewed Dr. Getz’ report and concurred with his use of the A.M.A., Guides and
the impairment rating.
The Board finds that Dr. Getz’ opinion is entitled to special weight as his report is
sufficiently well rationalized and based upon a proper factual background. The Office properly
relied upon his report in finding that appellant was entitled to an impairment of one percent to
the right upper extremity. Dr. Getz examined appellant, reviewed his medical records and
reported accurate medical and employment histories. He found no basis on which to attribute
any greater impairment. There is no probative medical evidence of record establishing that
appellant has more than one percent impairment of the right upper extremity.
The Board finds that the medical evidence does not establish that appellant was entitled
to more than a one percent impairment of the right upper extremity for which he has received a
schedule award.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,11 the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not
previously considered by the Office.12 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.13 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.14
ANALYSIS -- ISSUE 2
In his December 19, 2009 application for reconsideration appellant did not show that the
Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by the Office. As to new evidence, he submitted pain
disability index and functional capacity evaluation dated April 20, 2009 and his statement. None
11

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
12

Susan A. Filkins, 57 ECAB 630 (2006); B.P., Docket No. 08-1457 (issued

13

Robert G. Burns, 57 ECAB 657 (2006); see S.J., Docket No. 08-2048 (issued

20 C.F.R. § 10.606(b)(2).
February 2, 2009).
20 C.F.R. § 10.607(a).
July 9, 2009).
14

20 C.F.R. § 10.608(b). Tina M. Parrelli-Ball, 57 ECAB 598 (2006); see Y.S., Docket No. 08-440 (issued
March 16, 2009).

5

of the evidence submitted by appellant addressed the issue of a permanent impairment
determination for his right upper extremity. As the evidence did not address the issue in
question, i.e., the degree of his right upper extremity impairment, the evidence is not relevant or
pertinent. The Board finds that appellant did not submit relevant and pertinent new evidence not
previously considered by the Office.
The Board also notes that appellant resubmitted reports from Drs. Coles and Getz, which
were previously of record and considered in the adjudication of his schedule award. The
submission of evidence which repeats or duplicates evidence that is already in the case record
does not constitute a basis for reopening a case for merit review.15 Appellant did not provide any
relevant and pertinent new evidence to the issue of whether he was entitled to an increased
schedule award.
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that the Office erroneously applied or interpreted a specific point of law or
advanced a relevant new argument not previously submitted. Therefore, the Office properly
denied his request for reconsideration.
CONCLUSION
The Board finds that appellant did not establish that he sustained more than one percent
right upper extremity impairment. The Board further finds that he did not meet the requirements
of 20 C.F.R. § 10.606(b)(2) and the Office properly refused to reopen the case for merit review.

15

M.E., 58 ECAB 694 (2007); D’Wayne Avila, 57 ECAB 642 (2006); A.L., Docket No. 08-1730 (issued
March 16, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 19, 2010 and December 10, 2009 are affirmed.
Issued: March 24, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7