United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF DEFENSE,
Fort Belvior, VA, Employer
__________________________________________

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

Docket No. 08-1584
Issued: January 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 15, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ Branch of Hearings and Review’s merit decision dated April 23, 2008, finding that he
had received an overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$2,554.88 for the period August 7 to September 2, 2006 for which he was not at fault; and
(2) whether the overpayment is subject to waiver.
FACTUAL HISTORY
On April 18, 2005 appellant, then a 38-year-old distribution process worker, filed a
traumatic injury claim alleging that on March 24, 2005 a cart struck his right knee while he was
in the performance of his federal job duties. The Office accepted appellant’s claim for right knee
contusion on September 16, 2005. It authorized surgery on September 23, 2005 and expanded

appellant’s claim to include right medial meniscal tear. Appellant underwent a right knee
arthroscopy with partial medial and lateral meniscectomies and chondroplasty of the lateral tibial
plateau on September 28, 2005. He returned to light-duty work on December 16, 2005.
Appellant underwent a second arthroscopy on June 19, 2006 with a partial medial meniscectomy
and excision of symptomatic medial plica.
Appellant filed a notice of recurrence of disability on July 14, 2006 and indicated that he
sustained a recurrence of total disability on June 19, 2006 due to his accepted March 24, 2005
employment injury. He returned to light-duty work on August 7, 2006. On June 28, 2007 the
Office granted appellant a schedule award for 13 percent impairment of the right lower
extremity.1
In a letter dated June 18, 2007, the Office requested that the employing establishment
clarify appellant’s leave usage. The employing establishment report noted that appellant used
leave without pay from June 19 through August 4, 2006 and that he returned to full-time work on
August 7, 2006. The Office noted that appellant received compensation from August 6 through
September 2, 2006 in the amount of $2,650.05 but that he was only entitled to compensation for
August 6, 2006 in the amount of $94.65 as he returned to full-time work on August 7, 2006. It
calculated that appellant had received an overpayment in the amount of $2,554.88.
The Office issued a preliminary determination of overpayment on August 28, 2007 and
stated that appellant had received an overpayment of $2,554.88 for the period August 7 to
September 2, 2006 as he returned to full-time work on August 7, 2008. It found that appellant
was without fault in the creation of the overpayment. The Office further informed appellant that
in order for the Office to consider the question of waiver, he must complete the overpayment
recovery questionnaire. It stated that appellant was required to:
“Attach supporting documents … including copies of income tax returns, back
account statements, bill and canceled checks, pay slips and any other records
which support the income and expenses listed.”
The Office also informed appellant that under the Office’s regulations failure to submit the
requested information within 30 days would result in the denial of waiver.
Appellant requested waiver of the overpayment and a prerecoupment hearing. He
submitted an overpayment recovery questionnaire dated September 5, 2007 and indicated that his
monthly income was $2,470.40. Appellant stated that his monthly expenses were $5,074.72 and
indicated that he had no assets. He did not submit any other financial information. The Branch
of Hearings and Review scheduled the oral hearing for February 15, 2008. Appellant responded
on January 28, 2008 and stated that due to circumstances beyond his control he was unable to
appear at the scheduled hearing and requested a later date. On February 4, 2008 he requested to
change his oral hearing to a review of the written record. Appellant stated that he did not
disagree with the determination of the overpayment, only that he requested waiver of the
overpayment.
1

In his letter to the Board, appellant limited his appeal to the issue of overpayment of compensation. Therefore,
the Board will address only that issue in this decision. 20 C.F.R. § 501.2(c).

2

By decision dated April 23, 2008, the hearing representative found that appellant had
received an overpayment of compensation in the amount of $2,554.88 for the period August 7
through September 2, 2006, that he was not at fault in the creation of the overpayment, and that
the overpayment was not subject to waiver as he had failed to provide the necessary factual
evidence to support his inability to repay the overpayment.2
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States “shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty. A
claimant, however, is not entitled to receive temporary total disability and actual earnings for the
same period.4 Office 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
Appellant has conceded that he received an overpayment of compensation as he returned
to full-time work and received a payment from the Office for a period after he returned to work.
He has not disputed the amount of the overpayment and the Board notes that the Office provided
the calculations explaining how the amount of $2,554.88 was derived. Therefore, the Office has
met its burden of proof in determining that appellant received an overpayment of compensation
in the amount of $2,554.88 for the period August 7 through September 2, 2006.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act6 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of [the Act] or would be against equity
and good conscience.”7 If a claimant is without fault in the creation of an overpayment, the
Office may only recover the overpayment if recovery would neither defeat the purpose of the Act
nor be against equity and good conscience. The guidelines for determining whether recovery of
an overpayment would defeat the purpose of the Act or would be against equity and good
conscience are set forth in sections 10.434 through 10.437 of the Office’s regulations.
2

Following the Office’s April 23, 2008 decision, appellant submitted additional new evidence on appeal to the
Board. As the Office did not consider this evidence in reaching a final decision, the Board may not review the
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
3

5 U.S.C. §§ 8101-8193, 8102(a).

4

5 U.S.C. § 8116(a).

5

Danney E. Haley, 56 ECAB 393,400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (September 1994).
6

5 U.S.C. §§ 8101-8193, § 8129(b).

7

5 U.S.C. § 8129(b).

3

According to section 10.436, recovery of an overpayment would defeat the purpose of the
Act if recovery would cause hardship because the beneficiary needs substantially all of his or her
current income (including compensation benefits) to meet current, ordinary and necessary living
expenses and, also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.8 For waiver under the defeat the
purpose of the Act standard, an appellant must meet the two-pronged test and show that that she
both needs substantially all of her current income to meet current ordinary and necessary living
expenses,9 and that her assets do not exceed the resource base.10
The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose.11 The Office’s regulations provide:
“(a) The individual who received the overpayment is responsible for provid[ing]
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the [Act] or be against equity and good conscience….
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”12
ANALYSIS -- ISSUE 2
In this case, the Office found that appellant was not at fault in the creation of the
overpayment. However, appellant did not provide any financial information13 to show that
recovery of the overpayment would defeat the purpose of the Act. He likewise has not alleged
and the evidence does not demonstrate that he relinquished a valuable right or changed his
position for the worse due to the payment of the erroneous amount of compensation. Because
appellant has not shown that recovery would “defeat the purpose of the Act” or would “be
against equity and good conscience” the Board finds that the Office properly denied waiver of
recovery of the overpayment.

8

Office procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent, plus $960.00 for each additional dependent. Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
9

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez,
55 ECAB 245, 250 (2004).
10

W.F., 57 ECAB 705, 708 (2006).

11

Id.

12

20 C.F.R. § 10.438.

13

D.B., (Docket No. 08-601, issued August 6, 2008).

4

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,554.88 and that he failed to submit the necessary financial information to establish that he
was entitled to waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 10-467
Issued: September 16, 2010

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 December 8, 2009 appellant filed a timely appeal from the November 16, 2009 merit
decision of the Office of Workers’ Compensation Programs, which affirmed the denial of an
increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant is entitled to an increased schedule award as a result of his
September 7, 1998 employment injury.
FACTUAL HISTORY
On the prior appeal,1 the Board noted that appellant, a mail handler, sustained a partial
amputation of his left thumb while in the performance of duty on September 7, 1998. Finding
that he had no more than 19 percent impairment of his left upper extremity, the Board affirmed
1

Docket No. 00-2411 (issued June 12, 2001).

the Office’s January 13, 2000 schedule award.2 The facts of this case as set forth in the Board’s
prior decision are hereby incorporated by reference.
Appellant filed a claim for an additional schedule award. Dr. John W. Ellis, a Boardcertified family physician, provided the impairment evaluation. On December 15, 2008 he found
a thumb impairment of 10 percent for amputation, 17 percent for loss of motion and 20 percent
for sensory loss. These impairments combined for 41 percent total impairment of the thumb.3 A
41 percent impairment of the thumb represents 16 percent impairment of the hand4 and 14
percent impairment of the upper extremity.5
Dr. Ellis also found six percent impairment of the upper extremity due to loss of wrist
motion. This combined with the 14 percent impairment of the upper extremity due to the thumb
for 19 percent total impairment of the left upper extremity. Dr. Ellis stated:
“There is 41 percent impairment of the left thumb. He previously had 19 percent
schedule award for the left thumb. The continued infection of the left thumb has
caused more impairment of the left thumb with consequential injury to the left
wrist for a total impairment of 19 percent to the left upper extremity due solely to
[the September 7, 1998 employment injury].”
An Office medical adviser reviewed Dr. Ellis’ findings and confirmed that they showed a
19 percent total impairment of the left upper extremity.
On June 25, 2009 the Office issued a decision denying appellant’s claim for an increased
schedule award. It explained that he previously received a schedule award for 19 percent
impairment of his left upper extremity and that the medical evidence did not support an increase
in the upper extremity impairment already compensated.
On November 16, 2009 an Office hearing representative affirmed. She found no basis for
an increased award.

2

The Office issued this award based on the following impairments: 3 percent of thumb = 1 percent of hand = 1
percent of upper extremity for loss of range of motion; 10 percent of upper extremity for motor deficit or loss of grip
strength; 10 percent of thumb = 4 percent of hand = 4 percent of upper extremity for sensory abnormality; and 13
percent of thumb = 5 percent of hand = 5 percent of upper extremity for amputation with no loss of bone. The
Office combined (not added) the upper extremity impairments -- 1, 10, 4, 5 -- to find a 19 percent impairment of the
left upper extremity.
3

American Medical Association, Guides to the Evaluation of Permanent Impairment 604 (5th ed. 2001)
(Combined Values Chart).
4

Id. at 438, Table 16-1.

5

Id. at 439, Table 16-2.

2

Appellant asks the Board to review the Office’s November 16, 2009 decision and makes
the following argument:
“The basis of my initial CA-7 (September 15, 2008) and appeal have been
blatantly overlooked. There is no question that I have been paid for the original
schedule award of 19 percent. The dispute is with the additional 22 percent
impairment. The determination of this was stated in Dr. Ellis’ medical summary
dated December 15, 2008. The total impairment he concluded was 41 percent,
which is clearly stated. He has included the original 19 percent which leave 22
percent for which I am entitled to. Once again, I am submitting this decision to be
reassessed.”
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act6 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. For the complete loss of a thumb,
the Act provides 75 weeks of compensation.7 For the complete loss of a hand, 244 weeks of
compensation.8 For the complete loss of an upper extremity (arm), 312 weeks of compensation.9
Compensation for partial losses is proportionate.10
Where the residuals of an injury to a member of the body specified in the schedule extend
into an adjoining area of a member also enumerated in the schedule, such as an injury of a finger
into the hand, or a hand into the arm or of a foot into the leg, the schedule award should be made
on the basis of the percentage loss of use of the larger member.11
The Office evaluates the degree of permanent impairment according to the standards set
forth in the specified edition of the A.M.A., Guides.12
ANALYSIS
Appellant has nicely laid out his dispute with the Office’s November 16, 2009 decision.
He previously received a schedule award for 19 percent impairment. Dr. Ellis, the family
physician who most recently evaluated his impairment, reported 41 percent impairment. Indeed,
he stated the following: “There is 41 percent impairment of the left thumb. Dr. Ellis previously
6

5 U.S.C. § 8107.

7

Id. at § 8107(c)(6).

8

Id. at § 8107(c)(3).

9

Id. at § 8107(c)(1).

10

Id. at § 8107(c)(19).

11

Asline Johnson, 42 ECAB 619 (1991); Manuel Gonzales, 34 ECAB 1022 (1983).

12

20 C.F.R. § 10.404.

3

had 19 percent schedule award for the left thumb.” So it would appear that he reported 22
percent increase in appellant’s left thumb impairment.
Dr. Ellis’ second statement is misleading. Appellant previously received a schedule
award for 19 percent impairment of his left upper extremity, not for 19 percent impairment of his
left thumb. The schedule award included 3 percent thumb impairment for loss of motion, 10
percent thumb impairment for sensory abnormality, 13 percent thumb impairment for amputation
with no loss of bone, and 10 percent upper extremity impairment for loss of grip strength. So in
a general sense the previous schedule award was “for the left thumb,” as Dr. Ellis put it, or for all
the impairments caused by the accepted left thumb injury. But the specific impairment rating -19 percent -- represented the impairment of appellant’s left upper extremity, not the impairment
of his left thumb. That is why the Office’s January 13, 2000 decision awarded him 59.28 weeks
of compensation (19 percent times 312 weeks of compensation for the loss of an upper
extremity) and not 14.25 weeks of compensation (19 percent times 75 weeks of compensation
for the loss of a thumb).
After appellant received a schedule award for 19 percent impairment of his left upper
extremity, Dr. Ellis found that he still had 19 percent impairment of his left upper extremity. So
the Office is correct: Dr. Ellis’ impairment rating offers no basis for an increased schedule
award.
Appellant has the burden to show that his total impairment has increased, but the
evidence he submitted does not support his claim. Dr. Ellis did find an increase in thumb
impairment, and he included loss of wrist motion, which was not included in the previous award.
These regional impairments were offset by the exclusion of grip strength because the fifth edition
of the A.M.A. Guides did not allow Dr. Ellis to rate grip strength separately.13 Despite 41
percent impairment of his left thumb,14 appellant still had 19 percent impairment of the left upper
extremity.
Because the evidence appellant submitted to support his claim for an increased schedule
award does not show more than a 19 percent impairment of the left upper extremity, for which he
previously received compensation, the Board will affirm the Office’s November 16, 2009
decision.

13

A.M.A., Guides 507-08 (5th ed. 2001). In a rare case, if the examiner believes the individual’s loss of strength
represents an impairing factor that has not been considered adequately by other methods in the A.M.A. Guides, the
loss of strength may be rated separately, but only if the loss of strength is based on unrelated etiologic or
pathomechanical causes and if decreased motion or painful conditions do not prevent effective application of
maximal force in the region being evaluated. Otherwise, impairment ratings based on objective anatomic findings
take precedence.
14

Forty-one percent impairment of the left thumb is only 30.75 weeks of compensation (41 percent times 75
weeks of compensation for the loss of a thumb), which is less than the 59.28 weeks of compensation appellant
previously received.

4

CONCLUSION
The Board finds that appellant is not entitled to an increased schedule award as a result of
his September 7, 1998 employment injury. Appellant’s physician found that impairment of the
left upper extremity remained the same.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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

Docket No. 12-1454
Issued: November 20, 2012

Case Submitted on the Record

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

JURISDICTION
On June 27, 2012 appellant filed a timely appeal of a March 29, 2012 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on February 2, 2012.
FACTUAL HISTORY
On February 9, 2012 appellant, then a 56-year-old housekeeping aide, filed a traumatic
injury claim alleging that he sustained neck and throat soreness in the supply room on
1

5 U.S.C. § 8101 et seq.

February 2, 2012 after “Mr. Jackson” threw materials at him, pushed him against the wall,
choked him and brandished a razor.2 Andre Shelborne, his supervisor, controverted the account:
“Mr. Jackson in my presence did not throw any supplies at or around [appellant]. Neither did
Mr. Jackson possess a razor in his hand at any time during this incident.” Appellant stopped
work on February 2, 2012 and returned on February 4, 2012.
OWCP informed appellant in a March 1, 2012 letter that additional evidence was needed
to establish his claim. It gave him 30 days to submit a factual statement detailing the purported
work event on February 2, 2012 and a medical report from a qualified physician explaining how
this incident led to a neck condition.
In a February 13, 2012 status note, Dr. Robert H. Meyer, a Board-certified emergency
physician, released appellant to full-time duty effective February 14, 2012. Appellant also
provided unsigned February 13, 2012 patient home care instructions for strained neck muscles
and ligaments.
By decision dated March 29, 2012, OWCP denied appellant’s claim, finding that the
evidence did not establish that an employment incident occurred on February 2, 2012 as alleged.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,3
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
2

The case record indicates that Mr. Jackson was appellant’s coworker.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

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

6

T.H., 59 ECAB 388 (2008).

7

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

2

Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.9
ANALYSIS
The Board finds that the case is not in posture for decision.
The case record indicates that appellant filed a traumatic injury claim on
February 9, 2012. In a March 1, 2012 letter, OWCP informed him that additional factual and
medical evidence was needed to establish his claim and that he would have 30 days to submit the
requested evidence. After 28 days elapsed, OWCP denied appellant’s claim.
If a claimant submits factual evidence, medical evidence, or both, but OWCP determines
that this evidence is not sufficient to meet the burden of proof, OWCP will inform the claimant
of the additional evidence needed. The claimant will be allowed at least 30 days to submit the
evidence required.10 In this case, because OWCP improperly issued its decision before the end
of the minimum 30-day period, the case shall be remanded for further development consistent
with OWCP regulations. Thereafter, OWCP shall render an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

20 C.F.R. § 10.121.

3

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: November 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, HANCOCK STATION, )
Los Angeles, CA, Employer
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__________________________________________ )
S.B., Appellant

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

Docket No. 08-88
Issued: June 2, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 10, 2007 appellant filed a timely appeal of a January 19, 2007 decision of the
Office of Workers’ Compensation Programs, affirming the rescission of a temporary aggravation
of her preexisting cervical strain and a preexisting right shoulder strain, and a September 25,
2007 decision denying her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to rescind acceptance of a
temporary aggravation of appellant’s preexisting cervical strain and a preexisting right shoulder
strain; and (2) whether the Office abused its discretion in denying appellant’s request for
reconsideration.
FACTUAL HISTORY
On November 17, 2003 appellant, then a 38-year-old letter carrier, filed an occupational
disease claim alleging that she sustained a right shoulder injury on June 12, 2003 causally related

to a prior employment injury to her neck, shoulder and upper back on May 10, 1990. On
February 10, 2004 the Office accepted her claim for temporary aggravation of a preexisting
nonwork-related cervical strain and right shoulder strain.1 The acceptance was based on medical
reports and appellant’s assertion that she worked continuously between March to December 2002
stamping mail. On February 20, 2004 she filed a claim for compensation from March 12 to
December 2002.
In a report dated July 23, 2003, Dr. Michael Accord, an attending physiatrist, indicated
that appellant sustained a chronic sprain/strain on the right side of her neck due to her accepted
May 10, 1990 cervical strain. He opined that the major reason for her continued symptoms was
the failure of the employing establishment to provide work within her medical restrictions. On
October 20, 2003 Dr. Accord stated that the worsening of appellant’s medical condition was
caused by work assigned outside of her medical restrictions.
On December 24, 2003 the Office advised appellant that it would not reconsider her
previously denied claims merely because she filed a new claim form. Appellant was advised to
follow her appeal rights regarding the previous claims. The Office stated that it would consider
only factors of employment that had not previously been decided. It asked appellant to describe
any previously unclaimed employment activities which she believed caused or aggravated her
condition. Appellant responded that her condition worsened due to repeated use of her arm
while stamping mail from March to December 2, 2002. She contended that the employing
establishment failed to provide work within her physical restrictions.
In a December 31, 2003 report, Dr. Accord noted that appellant’s accepted right cervical
strain had developed into myofascial pain involving the right shoulder and neck. He stated:
“An MRI [magnetic resonance imaging] [scan] performed sometime ago
demonstrated chronic shoulder changes, which certainly are consistent with
deterioration in [appellant’s] initial status. I have previously indicated a number
of times that in my opinion [her] difficulties are related to the initial injury and
were exacerbated both by the failure of the [employing establishment] to
accommodate the restrictions which I placed on her over the previous 10 years
and the addition of an extended drive, requiring [appellant] to drive from Los
Angeles to Ontario and back, though she was rarely permitted to work even when
she returned to Los Angeles.
“Specifically, I would like to refer to a communication of [an Office claims
examiner], which indicates that [he] claims that [appellant’s] injuries were related
to work performed over the previous 10 years; this is absolutely false and is a
direct result of the failure of the employer to honor medical restrictions placed on
[appellant’s] accepted injury.
1

Appellant has three other claims. She filed a claim for a motor vehicle accident on May 10, 1990 that was
accepted for a cervical strain. Appellant’s compensation benefits were terminated effective March 11, 2002 on the
grounds that her condition had resolved. Her claim for an injury to her upper back, shoulder and neck on July 17,
2001 was denied. Appellant’s claim for a March 12, 2002 emotional condition was denied. The Board affirmed the
denial of appellant’s emotional condition claim. See Docket No. 05-767 (issued August 12, 2005).

2

“[Appellant] continues to see me on a weekly basis and is requiring on-going
medications….
“I continue to believe that [appellant] could work with the restrictions as [placed]
on her multiple times over the prior 10 years and I believe that she wants to return
to work. She has indicated on every occasion that she would like to work, but is
unable to do so secondary to the conditions which exacerbated her injury.”
On March 11, 2004 the employing establishment provided leave analysis forms showing
that appellant worked two and one-half hours on March 12, 2002, did not work at all between
March 13 and November 10, 2002 and worked two hours a day between November 11 and
December 2, 2002.
By letter dated March 11, 2004, the Office advised Dr. Accord of the evidence showing
that appellant did not work continuously between March and December 2002. The Office asked
him to provide a report explaining how appellant’s intermittent hours of work between March
and December 2002 caused or aggravated a medical condition.
In a March 22, 2004 report, Dr. Accord stated:
“The intermittent hours of work which [appellant] perform[ed] continuously from
the time of injury exacerbated her underlying condition, which if you recall, was a
workers’ compensation accepted cervical sprain/strain. This was an industriallyrelated injury and was previously accepted by [the Office].
“I saw [appellant] on a weekly basis during the periods in question and my
examination demonstrated spasm, limited range of motion and continuing pain,
for which [she] received weekly or semi-weekly trigger point injections with
some relief. In addition, [appellant] was placed on [pain medication].
“Aggravation was involved, though you must recall that [appellant] was sent
home most days after being told that there was no work for her within her
restrictions. She was returned to work on more than a dozen occasions with the
restrictions specified; however, her employer refused to honor these. In my
opinion, the lack of respect for medical restrictions negates the employer’s
complaints that [appellant] did not return to work.”
On April 23, 2004 the Office advised appellant of its proposed termination of her
compensation benefits based on evidence that she misrepresented the laws she worked between
March to December 2002. It noted that the employing establishment provided evidence that she
did not work between March 13 to November 10, 2002 and had worked for only two hours a day
from November 11 to December 2, 2002.
In a May 10, 2004 report, Dr. Accord stated that he treated appellant on a weekly basis
for several years. He indicated that she reported to work between March to December 2002 but
the employing establishment did not provide work within her medical restrictions. Dr. Accord
stated: “Please be advised that [appellant] was attempting to work during this time period, that

3

the work allowed was in conflict with her restrictions and that her failure to continue to work
was caused by the failure of her employer to accommodate her.”
By decision dated May 2, 2006, the Office rescinded its acceptance of a temporary
aggravation of a preexisting cervical strain and a preexisting right shoulder strain. It found that
the factual evidence established that she had misrepresented her work activity between March to
December 2002 and the medical evidence failed to establish that she had any condition causally
related to her work activity for that period.
On May 5, 2006 appellant requested a hearing.
November 14, 2006.

A telephonic hearing was held on

In a report dated November 20, 2006, Dr. Accord reiterated stated that he had treated
appellant for several years for an accepted cervical sprain that progressed to right shoulder
tendinitis as demonstrated on the MRI scan. She performed work that included repetitive use of
her right upper extremity, including repetitive stamping mail, casing mail and picking up trays of
mail which violated her medical restrictions. Appellant was told to go home after working for as
little as five minutes when her cervical and right shoulder symptoms returned. Dr. Accord stated
that the significant deterioration of her condition was caused by excessive use of her upper
extremities as a direct result of working outside her medical restrictions.
By decision dated January 19, 2007, an Office hearing representative affirmed the May 2,
2006 decision rescinding its acceptance of appellant’s claim for a temporary aggravation of a
preexisting cervical strain and a preexisting right shoulder strain.
On February 6, 2007 appellant requested reconsideration. In a January 29, 2007 report,
Dr. Accord indicated that her work in March 2002 and between November to December 2002
caused a material worsening of her condition. He stated that working for even five minutes
exacerbated her pain especially when she did not perform work within her medical restrictions.
Dr. Accord advised that appellant attempted to return to work on numerous occasions but failure
of the employing establishment to provide work within her medical restrictions caused a
deterioration of her status. Her accepted cervical sprain evolved into myofascial pain of the neck
and shoulder and then into periarthritis of the shoulder.
By decision dated September 25, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
The Board has upheld the Office’s authority to reopen a claim at any time on its own
motion under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior
decision and issue a new decision.2 The Board has noted, however, that the power to annul an
award is not an arbitrary one and that an award for compensation can only be set aside in the

2

See Andrew Wolfgang-Masters, 56 ECAB 411 (2005); Linda L. Newbrough, 52 ECAB 323 (2001); see also
20 C.F.R. § 10.610.

4

manner provided by the compensation statute.3 It is well established that, once the Office
accepts a claim, it has the burden of justifying termination or modification of compensation.4
This holds true where the Office later decides that it has erroneously accepted a claim for
compensation.5 In establishing that its prior acceptance was erroneous, the Office is required to
provide a clear explanation of its rationale for rescission.6
ANALYSIS -- ISSUE 1
The Office advised appellant that it proposed to rescind the acceptance of her claim for
injury based on new evidence that she misrepresented her actual work history between March to
December 2002.
Appellant asserted that she worked continuously between March to
December 2002. However, the employing establishment provided evidence that she worked
from March 4 to 12, 2002, did not work at all from March 13 to November 10, 2002 and worked
for only two hours a day from November 11 to December 2, 2002. In light of this new evidence,
the Office asked Dr. Accord to provide a report further explaining how appellant’s intermittent
hours of work between March to December 2002 caused or aggravated her medical condition.
On March 22, 2004 Dr. Accord stated: “The intermittent hours of work which [appellant]
perform[ed] continuously from the time of injury exacerbated her underlying condition….” He
noted that she had spasm, limited range of motion and continuing pain. Dr. Accord did not
provide a detailed description of physical findings or explain how his findings demonstrated a
material worsening of appellant’s accepted temporary aggravation of her preexisting cervical
strain and right shoulder strain. He provided insufficient explanation as to how appellant’s
limited work activity between March to December 2002 caused or contributed to her condition.
Dr. Accord stated that her work activity, “since the time of injury,” i.e., May 10, 1990, caused
her disability between March to December 2002. However, in a separate claim, the Office found
that appellant’s disability causally related to her original May 10, 1990 claim had resolved as of
March 11, 2002. Dr. Accord did not provide a clear explanation as to whether the period of
work activity between March to December 2002 caused her spasm, limited range of motion and
pain and how these findings constituted a material worsening of appellant’s preexisting cervical
and right shoulder conditions.
On May 10, 2004 Dr. Accord indicated that the employing establishment did not provide
appellant with work within her medical restrictions and sent her home early. However, he did
not discuss her actual work activities on the actual days that she worked between March to
December 2002 or provide a rationalized opinion on whether such work activity caused a
material worsening of her preexisting conditions.
On November 20, 2006 Dr. Accord essentially repeated his previous assertion that the
employing establishment did not provide work within appellant’s medical restrictions. He stated
3

Doris J. Wright, 49 ECAB 230 (1997).

4

Linda L. Newbrough, supra note 2.

5

Id; Gareth D. Allen, 48 ECAB 438 (1997).

6

Delphia Y. Jackson, 55 ECAB 373 (2004); Belinda R. Darville, 54 ECAB 656 (2003).

5

that she performed work that included repetitive use of her right upper extremity, including
repetitive stamping mail, casing mail and picking up trays of mail which violated her medical
restrictions. Dr. Accord stated that the significant deterioration of appellant’s condition was
caused by excessive use of her upper extremities as a direct result of working outside her medical
restrictions. However, he provided insufficient medical rationale explaining how her brief period
of employment in March 2002 and between November to December 2002 caused a material
worsening of her preexisting cervical spine and right shoulder conditions.
In rescinding acceptance of the claim, the Office provided a clear explanation of its
rationale for the rescission. It explained that its acceptance of her claim was premised on her
misrepresentation that she worked continuously between March to December 2002 and on
medical reports that relied on this erroneous factual history. It explained that Dr. Accord’s
subsequent reports failed to adequately explain how appellant’s claimed worsening of her
condition was caused by her brief period of work in March 2002 and between November to
December 20002. For these reasons, the Board finds that the Office met its burden of proof in
rescinding its acceptance of a temporary aggravation of a preexisting cervical strain and a
preexisting right shoulder strain.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act7 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation.
The Act states:
“(a) The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may-(1) end, decrease, or increase the compensation previously awarded; or
(2) award compensation previously refused or discontinued.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not
previously considered by the Office; or (3) constitutes relevant and new pertinent evidence not
previously considered by the Office.8 When an application for review of the merits of a claim
does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.9

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b).

6

ANALYSIS -- ISSUE 2
In a January 29, 2007 report, Dr. Accord opined that appellant’s work activity in
March 2002 and between November to December 2002 caused a material worsening of her
cervical back and right shoulder conditions because the employing establishment did not provide
work within her medical restrictions. This report is merely a repetition of Dr. Accord’s opinion
in his earlier reports. Therefore, it does not constitute relevant and pertinent evidence or relevant
legal argument not previously considered by the Office.
The Board finds that appellant did not submit arguments or evidence showing that the
Office erroneously applied or interpreted a specific point of law, advancing a relevant legal
argument not previously considered or constituting relevant and new pertinent evidence not
considered previously by the Office. Therefore, the Office properly denied her request for
reconsideration.
CONCLUSION
The Board finds that the Office met its burden of proof in rescinding its acceptance of
appellant’s temporary aggravation of a preexisting cervical strain and a preexisting right shoulder
strain. The Board further finds that the Office did not abuse its discretion in denying her request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 25 and January 19, 2007 are affirmed.
Issued: June 2, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ST. ALBANS HARBOR HEALTHCARE
SYSTEM, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ena Thompson, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0791
Issued: February 26, 2019

Case Submitted on the Record

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

JURISDICTION
On March 1, 2018 appellant, through her representative, filed a timely appeal from an
October 26, 2017 merit decision and a January 29, 2018 nonmerit decision of the Office of
Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury causally related to her accepted September 4, 2017 employment incident; and (2) whether
OWCP abused its discretion when it denied appellant’s request for a hearing as untimely filed
pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On September 13, 2017 appellant, then a 51-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 4, 2017 she sprained her back when she
slipped and fell on a wet floor while in the performance of duty.
On September 4, 2017 appellant was treated in the employing establishment’s emergency
department for complaints of lower back and buttock pain due to a fall. Dr. Aleksander Gleyzer,
Board-certified in emergency medicine, noted an unspecified contusion.
In a September 5, 2017 occupational health note, Dr. Renee Venzen, an internist, indicated
that she treated appellant for follow-up of lower right back/buttock pain. She related that appellant
slipped and fell on a wet floor in the B3 unit and landed on her right side. Appellant had a history
of low back surgery in 2016, secondary to a herniated disc. Dr. Venzen reported that physical
examination showed no vertebral tenderness. She noted an unspecified muscle strain.
On September 5, 2017 a health care provider, who signed with initials that appear to be
R.Y., completed a duty status report (Form CA-17), which noted a September 4, 2017 date of
injury and also noted an unspecified muscle strain. R.Y. authorized appellant to work modified
duty with specific restrictions.
In a September 20, 2017 development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish her claim. It provided a factual questionnaire for her
completion and requested additional medical evidence. OWCP afforded appellant 30 days to
submit the requested information. By separate letter of even date, it requested additional
information from the employing establishment regarding the circumstances of the September 4,
2017 injury.
OWCP subsequently received a September 19, 2017 duty status report (Form CA-17) in
which a health care provider with initials that appear to be R.Y. noted an unspecified muscle sprain
and advised that appellant could return to full-duty work.
By decision dated October 26, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the September 4, 2017 employment incident occurred as alleged, but denied her
claim because the medical evidence submitted did not contain a diagnosis in connection with the
accepted incident. Although the evidence included diagnoses of “contusion” and “muscle sprain,”
it was unclear as to the specific location(s) of the diagnosed condition(s). Consequently, OWCP
found that appellant had not established the medical component of fact of injury.
In an undated appeal request form, postmarked December 14, 2017, appellant requested an
oral hearing before a representative of OWCP’s Branch of Hearings and Review.
2

By decision dated January 29, 2018, the Branch of Hearings and Review denied appellant’s
request for a hearing, finding that it was untimely filed as the request was not postmarked within
30 days of OWCP’s October 26, 2017 merit decision. The hearing representative also considered
whether to grant a discretionary hearing, but determined that the issue in the case could equally
well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 period of FECA,3 and 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
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

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

T.H., 59 ECAB 388, 393-94 (2008).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989).

9

T.H., supra note 6; Robert G. Morris, 48 ECAB 238 (1996).

10

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted September 4, 2017 employment incident.
The record contains hospital discharge instructions dated September 4, 2017. While
Dr. Gleyzer noted an unspecified contusion, the report does not contain a firm medical diagnosis
and does not adequately explain the cause of any medical condition.12
In support of her claim appellant also submitted a September 5, 2017 occupational health
note by Dr. Venzen. Dr. Venzen described that appellant slipped and fell at work and experienced
lower back and buttock pain. She reported that physical examination showed no vertebral
tenderness and noted an unspecified muscle strain. This report, however, fails to establish a firm
medical diagnosis and provides no support for an injury. Dr. Venzen did not specify where the
muscle sprain was located nor did she report any unremarkable examination findings.13
Accordingly, the Board finds that her report is insufficient to establish a firm medical diagnosis in
connection with the accepted employment incident.
The Form CA-17 duty status reports completed by an unspecified health care provider
dated September 5 and 19, 2017 have no probative value, as it is not established that the author is
a physician.14
Accordingly, the Board finds that appellant has not established that she sustained an injury
causally related to the accepted September 4, 2017 employment incident.
On appeal, appellant asserts that she was injured at work and indicates that she has
supporting documents. As explained above, the medical evidence of record is insufficient to
establish an injury causally related to the accepted employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary … is entitled, on request made within 30 days after the date of the
11

Id.

12

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

13

J.P., Docket No. 14-0087 (issued March 14, 2014).

14

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

4

issuance of the decision, to a hearing on his [or her] claim before a representative of the
Secretary.”15 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.16 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.17 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not abused its discretion when it denied appellant’s request
for a hearing as untimely filed pursuant to 5 U.S.C. § 8124. OWCP’s regulations provide that the
request for a hearing or a review of the written record must be mailed within 30 days of the date
of the decision for which a review is sought. Because appellant’s request was postmarked on
December 14, 2017, more than 30 days after OWCP’s October 26, 2017 decision, it was untimely
filed and she was not entitled to a hearing as a matter of right.
Although appellant’s request for a hearing was untimely filed, OWCP has the discretionary
authority to grant the request and it must exercise such discretion.19 In its January 29, 2018
decision, OWCP’s hearing representative properly exercised her discretion by notifying appellant
that she had considered the matter and determined that the issue involved could be equally well
addressed by requesting reconsideration before OWCP and submitting appropriate evidence. The
Board finds that the hearing representative properly exercised her discretionary authority in
denying appellant’s request for a hearing.20 An abuse of discretion is generally shown through
proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts.21 In this case, the evidence
of record does not indicate that OWCP abused its discretion. Accordingly, the Board finds that
OWCP properly denied appellant’s hearing request.
CONCLUSION
Appellant has not met her burden of proof to establish a traumatic injury causally related
to her accepted September 4, 2017 employment incident. The Board further finds that OWCP did
15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. §§ 10.616, 10.617.

17

Id. at § 10.616(a).

18

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

19

Id.

20

Mary B. Moss, 40 ECAB 640, 647 (1989).

21

Samuel R. Johnson, 51 ECAB 612 (2000).

5

not abuse its discretion in denying her request for a hearing as untimely filed pursuant to 5 U.S.C.
§ 8124.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2018 and October 26, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 26, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
CLEMENT J. ZABLOCKI MEDICAL CENTER, )
Milwaukee, WI, Employer
)
__________________________________________ )
A.S., Appellant

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

Docket No. 12-1260
Issued: November 13, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2012 appellant, through his attorney, filed a timely appeal of an April 30,
2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying a recurrence
of disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability on August 3, 2001 causally related to his January 6, 1993 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 6, 1993 appellant, then a 43-year-old health care technician, slipped and fell
due to water on the floor of the employing establishment. OWCP accepted that he sustained a
cervical strain and low back strain. It subsequently included a herniated disc at L5-S1 on
October 5, 1993 and authorized surgery. Appellant did not undergo surgery.
Appellant was injured in a motor vehicle accident on December 5, 1993. In a report
dated January 31, 1994, Dr. Andrew J. Seter, an internist, stated that appellant’s condition had
improved since November 22, 1993 and that his radiculopathy was resolving. A myelogram
dated May 4, 1993 demonstrated a large disc herniation at L5-S1 with significant displacement
of the right S1 nerve root. On March 8, 1994 OWCP placed appellant on the periodic rolls.
By decision dated April 19, 1995, OWCP granted appellant a schedule award for 14
percent impairment of his right leg.
On September 25, 1999 appellant was involved in a motor vehicle accident which
resulted in post-traumatic neck pain. Appellant underwent an electromyogram and nerve
conduction studies which demonstrated mild carpal tunnel syndrome on the right. In a report
dated January 11, 2000, Dr. Kevin A. Weidman, a Board-certified orthopedic surgeon, noted that
appellant was injured in a motor vehicle accident in September 1999 which resulted in marked
increased in his low back pain. The record contains treatment notes from September 25, 1999
through November 22, 2000 from Dr. Weidman, who examined appellant again on
September 16, 2003. Dr. Weidman recommended surgery on October 11, 2003 and attributed
appellant’s neck and back pain to his motor vehicle accident. He stated, “The accident had
aggravated the asymptomatic neck and back pain to a point that was beyond its normal
progression causing severe pain….” On August 30, 2004 appellant filed a claim for
compensation. He did not provide the dates of disability and the form was not completed by the
employing establishment.
Appellant requested an additional schedule award on May 24, 2004. Dr. Weidman
examined appellant on October 22, 2004 and stated that he experienced pain in his lower back
and cervical spine. He provided an impairment rating. On August 26, 2005 Dr. Weidman
discussed appellant’s impairment rating and opined that appellant could perform sedentary work
lifting up to 10 pounds.
By decision dated August 23, 2006, OWCP granted appellant a schedule award for 10
percent of the left leg.
In a report dated January 23, 2006, Dr. Raj D. Rao, a Board-certified orthopedic surgeon
of professorial rank, examined appellant. He diagnosed multilevel degenerative cervical and
lumbar spondylosis, chronic right-sided radicular sensory deficits and musculoligamentous neck
and low back pain. Dr. Rao described appellant’s 1993 employment injury and noted that
appellant stopped work in 2001. He examined appellant on February 13, 2006 and
recommended conservative treatment.

2

Appellant filed a claim for a recurrence of disability on February 11, 2008 alleging that
he sustained total disability on August 3, 2001 due to his January 6, 1993 employment injury. In
a letter dated November 24, 2009, OWCP requested that he submit additional factual and
medical evidence in support of his claim.
By decision dated November 2, 2011, OWCP denied appellant’s claim for a recurrence of
disability. It found that the medical evidence was not sufficient to establish a period of disability
on or after August 3, 2001 due to appellant’s January 6, 1993 employment injury. OWCP noted
that Dr. Rao did not include a detailed history of injury.
Appellant requested an oral hearing before an OWCP hearing representative on
November 10, 2011. On November 24, 2009 he stated that he was performing regular duty at the
time of his recurrence and that his condition had degenerated from wearing lead jackets.
Appellant testified at the February 14, 2012 oral hearing that he resigned from the employing
establishment in October 2001 because he was unable to continue working. He testified that he
returned to full duty and was performing his full duties when he resigned in 2001. During the
last five years of work, appellant wore a lead jacket more than eight hours a day to allow
imaging in the operating room. He also stated that he lifted trays weighing 25 to 30 pounds.
By decision dated April 30, 2012, OWCP’s hearing representative denied appellant’s
claim finding insufficient medical evidence to establish that his disability for work on or after
August 2011 was due to the 1993 injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.2 Appellant
has the burden of establishing by the weight of the substantial, reliable and probative evidence, a
causal relationship between his recurrence of disability commencing August 2001 and his 1993
employment injury.3 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.4

2

20 C.F.R. § 10.5(x).

3

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-9 (1982).

4

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

ANALYSIS
Appellant filed a notice of recurrence alleging that his work-related condition worsened
in August 2001 such that he was totally disabled. He has not submitted any medical evidence
addressing an onset of total disability in August 2001. The relevant medical evidence consists of
a series of reports from Drs. Rao and Weidman.
Dr. Weidman began treating appellant in January 2000 following a motor vehicle
accident in September 1999. He opined that this accident resulted in increased low back pain.
Dr. Weidman recommended surgery on October 11, 2003 and attributed appellant’s neck and
back pain to his motor vehicle accident. He examined appellant on October 22, 2004 and stated
that appellant experienced continued pain in his lower back and cervical spine. Dr. Weidman’s
notes are not sufficient to meet appellant’s burden of proof in establishing a recurrence of
disability on or after August 3, 2001 as he attributed appellant’s disability to his motor vehicle
accident. He did not offer any medical evidence supporting that appellant’s condition after
August 2001 was due to his accepted employment injury. Without a medical report offering an
opinion that the claimed recurrence of disability was due to the accepted employment injury,
appellant has failed to meet his burden of proof.
Dr. Rao first examined appellant in January 2006 and diagnosed multilevel degenerative
cervical and lumbar spondylosis, chronic right-sided radicular sensory deficits and
musculoligamentous neck and low back pain. He described appellant’s 1993 employment injury
and noted that appellant stopped work in 2001. Dr. Rao did not discuss appellant’s motor
vehicle accident in 1999 and did not address his ability to work on or after August 2001. As he
did not offer an opinion based on a complete medical history that appellant was disabled due to
his accepted employment injury, his reports are not sufficiently detailed to meet appellant’s
burden of proof in establishing that he sustained a recurrence of total disability on or after
August 2001.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between his January 6, 1993 employment injury and any
disability for work on or after August 3, 2001. As such appellant has not established a
recurrence of disability.

4

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2012 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: November 13, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
SMITHSONIAN INSTITUTION,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-0874
Issued: August 25, 2016

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 March 23, 2016 appellant, through counsel, filed a timely appeal from a February 9,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish cervical, lumbar, and
shoulder strains on March 30, 2015 causally related to the accepted employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 2, 2015 appellant, then a 57-year-old maintenance worker, filed a traumatic
injury claim (Form CA-1) alleging that on March 30, 2015 he injured his left shoulder and tail
bone. He stated that the injury occurred when he fell off the second step of a ladder while
changing a ceiling tile. The employing establishment noted that no time had been lost from the
injury and no medical expenses incurred.
Appellant submitted medical reports dated April 7 and 27, 2015, signed by a nurse
practitioner. He also submitted several unsigned diagnostic tests.
By letter dated June 3, 2015, OWCP informed appellant of the evidence necessary to
establish his claim. It noted that he had not submitted sufficient medical evidence to establish
his claim and that any medical evidence submitted in support of his claim had to be signed by a
qualified physician. Appellant was afforded 30 days to submit further evidence.
Appellant submitted another medical report dated June 2, 2015, signed by a nurse
practitioner. He also submitted work restrictions dated June 29, 2015, with an illegible signature.
In a report dated June 29, 2015, Dr. Rochelle Hutchison, a Board-certified orthopedist,
assessed appellant with neck pain, left shoulder pain, and back pain. She performed a shoulder
injection and recommended work restrictions of no lifting greater than 10 pounds and no
prolonged bending or twisting.
By decision dated July 10, 2015, OWCP denied appellant’s claim for compensation. It
noted that the alleged incident had occurred as described, and appellant had provided a medical
report from a physician, but he had not established a diagnosis causally related to the accepted
incident. The only assessment contained in that report was for “pain,” which was a symptom and
not a diagnosis. OWCP further noted that the remaining medical evidence was from nurse
practitioners, who did not qualify as physicians under FECA.
On August 7, 2015 appellant requested a review of the written record before an OWCP
hearing representative.
In a medical report dated July 13, 2015, Dr. Hutchison diagnosed appellant with neck
pain, left shoulder pain, and back pain as a result of cervical and lumbar strain at work. She
performed another left shoulder injection and recommended work restrictions of no lifting over
10 pounds and no prolonged bending or twisting. Dr. Hutchison noted that the onset of
appellant’s symptoms was on April 30, 2015 after a fall at work. She stated that appellant had a
surgical history of back surgery, knee arthroscopy, knee surgery, knee replacement, and spinal
surgery.
In a report of diagnostic testing dated April 23, 2015, Dr. Timothy S. Eckel, a Boardcertified radiologist, interpreted the results of a magnetic resonance imaging (MRI) scan test of
the cervical spine. He stated an impression of congenitally short pedicles of the cervical spine,
with multilevel disc degeneration and uncovertebral joint hypertrophy.

2

On September 29, 2015 Dr. Hutchison recommended work restrictions of lifting up to 10
pounds frequently, with standing and walking as needed.
By letter dated June 29, 2015, Dr. Hutchison noted that appellant fell at work on April 30,
2015, resulting in cervical, lumbar, and left shoulder strain. She opined that appellant’s fall was
the direct and proximate cause of these diagnoses, and that her opinion was based on reasonable
medical probability.
By decision dated February 9, 2016, an OWCP hearing representative affirmed the
July 10, 2015 decision as appellant had not submitted sufficient evidence to establish a causal
relationship between his diagnoses and the incident of March 30, 2015. He noted that
Dr. Hutchison had not provided a sufficiently rationalized explanation of how this incident
caused appellant’s cervical, lumbar, and shoulder strains.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

3

compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.12 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13
ANALYSIS
The Board finds that the medical evidence submitted by appellant is insufficient to
establish that the accepted employment incident of March 30, 2015 caused appellant’s cervical,
lumbar, and shoulder strains.
Appellant submitted several reports from Dr. Hutchison. In a medical report dated
July 13, 2015, Dr. Hutchison diagnosed appellant with neck pain, left shoulder pain, and back
pain as a result of cervical and lumbar strain at work. She noted that the onset of appellant’s
symptoms was on April 30, 2015 after a fall at work. By letter dated June 29, 2015,
Dr. Hutchison stated that appellant fell at work on April 30, 2015, resulting in cervical, lumbar,
and left shoulder strain. She opined that appellant’s fall was the direct and proximate cause of
these diagnoses, and that her opinion was based on reasonable medical probability.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.14 Dr. Hutchison’s reports repeatedly refer to a
date of injury other than that reported by appellant: while appellant’s claim is for an injury
resulting from a fall at work on March 30, 2015, Dr. Hutchison’s reports consistently refer to a
fall on April 30, 2015. As such, her reports either reflect an incorrect history of injury, or refer
to a separate traumatic event on April 30, 2015, outside the scope of the current claim. Because
Dr. Hutchison’s reports contain a date of injury different from the date claimed by appellant, the
reports are based on an incorrect history of injury and her reports are therefore of diminished
10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

D.D., Docket No. 13-1517 (issued April 14, 2014).

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probative value.15 Moreover, Dr. Hutchison’s reports do not provide a sufficient description of
the fall at work, or a biomechanical explanation of how the fall on March 30, 2015 caused or
aggravated appellant’s cervical, lumbar, and shoulder strain. Lacking such an explanation,
Dr. Thompson’s reports are insufficient to establish a causal relationship between the events of
August 15, 2012 and appellant’s diagnosed conditions.16
OWCP also received a report from Dr. Eckel, wherein he interpreted the results from
appellant’s April 23, 2015 MRI scan. As the diagnostic tests do not provide an opinion on
causation, they are of diminished probative value.17
Appellant also submitted several reports from a nurse practitioner. The Board has held
that documents signed by a nurse practitioner are not considered probative medical evidence as a
nurse practitioner is not a physician as defined under FECA.18 Similarly appellant submitted a
report with an illegible signature which is not considered probative medical evidence. The
Board has held that unsigned reports or ones that bear illegible signatures cannot be considered
as probative medical evidence because they lack proper identification.19
As appellant has not submitted sufficiently rationalized medical evidence to support his
allegation that he sustained an injury causally related to duties of his employment on March 30,
2015, he has not met her burden of proof to establish a claim.20
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish cervical,
lumbar, and shoulder strains on March 30, 2015, causally related to the accepted employment
incident.

15

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

16

See W.H., Docket No. 11-1369 (issued December 14, 2011).

17

See G.C., Docket No. 15-1950 (issued June 13, 2016).

18

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical therapists are not
competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law).
19

See J.P., Docket No. 16-0501 (issued July 11, 2016).

20

Supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2016
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

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

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-379
Issued: October 2, 2007

Case Submitted on the Record

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

JURISDICTION
On November 27, 2006 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated September 15, 2006 granting a schedule award for
binaural hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has greater than a 12 percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On October 15, 2004 appellant, then a 74-year-old retired sheetmetal helper/pipefitter,
filed an occupational disease claim alleging that he sustained a hearing loss in both ears as a
result of noise exposure at work. The Board notes that the Office previously accepted
appellant’s claim for a work-related hearing loss in his left ear. It issued a schedule award in

1976 for 30 percent impairment to his left ear, or 15.6 weeks of compensation. No hearing aids
were authorized at that time.
On January 23, 2006 the Office referred appellant to Dr. Alan Keyes, a Board-certified
otolaryngologist, in order to determine the extent and degree of hearing loss as a result of his
federal employment. In a medical report dated February 13, 2006, Dr. Keyes diagnosed
appellant with sensorineural hearing loss and tinnitus. He noted that audiometric testing was
conducted on appellant’s behalf on that date. Testing at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second (cps) revealed the following: right ear air -- 20, 30, 70 and 75
decibels; right ear bone -- 20, 30, 70 and 70; left ear air -- 15, 35, 70 and 80 and left ear bone -15, 35, 70 and 75. Dr. Keyes calculated appellant’s hearing impairment as follows: average
hearing loss in the right ear (air) equals 48.75 minus a fence of 25 equals 23.75 multiplied by 1.5
equaled a 35.63 percent hearing loss in appellant’s right ear. With regard to the left ear, he noted
that the average hearing loss in the left ear was 50 decibels from which he subtracted the fence of
25 and multiplied by 1.5 to equal 37.5 percent impairment in appellant’s left ear. Dr. Keyes
determined appellant’s hearing loss by multiplying 35.63 (hearing impairment in the better ear)
by 5 and adding 37.5 percent (hearing loss in the poorer ear) and dividing the sum by 6 to arrive
at his conclusion that appellant sustained a 35.94 percent binaural hearing loss. He also
recommended hearing aids.
By letter dated March 13, 2006, the Office accepted appellant’s claim for bilateral
sensorineural hearing loss with tinnitus. In a report dated March 20, 2006, an Office medical
adviser reviewed the audiogram obtained by Dr. Keyes. In applying the Office’s standard
formula for determining impairment due to hearing loss, he agreed that appellant had a 35.9
percent binaural hearing loss. He also recommended hearing aids.
On May 16, 2006 appellant filed a claim for a schedule award.
By letter dated July 27, 2006, the Office claims examiner advised the Office medical
adviser that appellant previously received a schedule award, Office File No. 250085051, for 30
percent impairment to his left ear. The physician was asked if this changed the impairment
rating or date of maximum medical improvement. By letter dated July 28, 2006, the Office
medical adviser requested the audiogram and report on which the previous schedule award was
based. The Office forwarded an October 18, 1976 audiometric report and November 24, 2006
worksheet calculating the 30 percent monaural impairment to appellant’s left ear. On August 30,
2006 the Office medical adviser stated:
“The claimant’s impairment rating does need to be amended taking into account
[his] previous award. I have used the difference between the percent impairment
ratings from the previously schedule award in 1976 and the most recent
impairment ratings to calculate the additional percentage impairment for this
most recent schedule award. The appropriate and warranted permanent
percentage impairment for the claimant’s hearing loss, based upon the 5th
[e]dition of the [American Medical Association,] Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), is 35.65 percent monaural in the right
ear, 7.5 percent monaural in the left ear and a 12.19 percent binaural hearing loss.
The date of maximum medical improvement is February 13, 2006 and the

2

calculations for the impairment rating are generated from the most recent
audiogram which was performed on this date and are included on the completed
CA-51 form.
“The claimant’s workplace noise exposure while with the [F]ederal [G]overnment
(as described in the information provided) was sufficient in duration and intensity
to have contributed to his loss demonstrated at the date of maximum medical
improvement. Therefore, the medical evidence does support the … authorization
of hearing aids to treat his condition.” (Emphasis added.)
On September 15, 2006 the Office granted a schedule award for an additional 12 percent
binaural loss of hearing.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 provides
for compensation to employees sustaining permanent loss of use, of specified members of the
body. The Act, however, does not specify the manner in which the percentage loss of a member
shall be determined. The method used in making such determination is a matter which rests in
the sounds discretion of the Office. 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 (5th ed. 2001) has been adopted by the Office for
evaluating schedule losses and the Board has concurred in such adoption.2
The Office evaluates industrial hearing 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 cps, the losses at each
frequency are added up and averaged.4 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural loss; the lesser loss is multiplied by 5, then added to the
greater loss and the total is divided by 6 to arrive at the amount of the binaural hearing loss.5
The Board has concurred in the Office’s adoption of this standard for evaluating hearing losses.6
With regard to preexisting impairment of a scheduled member, the Office’s procedure
manual provides that any previous impairment to the member under consideration is included in
calculating the percentage of loss.7
1

5 U.S.C. §§ 8101-8193.

2

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

3

A.M.A., Guides 250.

4

Id.

5

Id.

6

Renaldo R. Lichenberger, 52 ECAB 462 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(2) (August 2002).

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ANALYSIS
In 1976, the Office accepted appellant’s claim for 30 percent permanent impairment to
his left ear and issued a schedule award for a period of 15.6 weeks of compensation. Appellant
filed a claim for additional hearing loss and he was referred for examination by Dr. Keyes. On
February 13, 2006 Dr. Keyes determined that appellant had sustained a 35.94 percent binaural
hearing loss. Audiometric testing obtained by Dr. Keyes for the recorded frequencies at 500,
1,000, 2,000 and 3,000 cps revealed right ear losses of 20, 30, 70 and 75 decibels and left ear
loss of 15, 35, 70 and 80 decibels. The right ear total decibel loss of 195 was divided by 4 to
total an average hearing loss of 48.75 decibels. The fence of 25 decibels was then subtracted
from this amount, to equal 23.75 decibels. This amount was multiplied by the factor of 1.5 to
arrive at a total 35.62 percent monaural loss to the right ear. The left ear total decibel loss of 200
was divided by 4 to total an average hearing loss of 50 decibels. The fence of 25 decibels was
then subtracted from this amount, to equal 25 decibels. This amount was multiplied by the factor
of 1.5 to total 37.5 percent monaural hearing loss to the left ear. Dr. Keyes properly applied the
Office formula for determining binaural hearing loss by multiplying the 35.62 right ear loss by 5,
as it was the lesser loss, to find a product of 178.1. He then added this amount to the 37.5
percent left ear loss to total 215.6, which was divided by 6 to total a binaural hearing loss of
35.94 percent.8
The Office referred Dr. Keyes’ report to an Office medical adviser who agreed that
appellant had a 35.94 percent binaural hearing loss. However, the Office medical adviser was
subsequently instructed to consider what effect the prior impairment rating of 30 percent
monaural hearing loss to the left ear would have on the claim.
The Office medical adviser reapplied the Office’s formula: deducting the prior 30
percent left ear loss from the 37.5 percent left ear hearing loss as found in the audiogram
obtained for Dr. Keyes. He noted that this resulted in a 7.5 percent hearing loss, to which he
applied the remainder of the Office’s formula to find a 12 percent binaural hearing loss.9 Based
on this application of the Office’s formula, appellant received a schedule award in this amount.
However, the Board notes that this is not a proper application of the Office’s hearing loss
formula. There is no provision in the formula for deducting a prior hearing loss from the
audiometric test results reported by Dr. Keyes. As noted in the Office’s procedure manual, any
previous impairment to the member under consideration is included in calculating the total
percentage of loss.10 It is only after calculating the total number of weeks of compensation that
the loss represents that a prior schedule award is then deducted.

8

Office procedures provide that in computing binaural hearing loss, percentages should not be rounded until the
final percent for award purposes is obtained. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.4(b)(2)(b) (March 2005). The Board notes that when the final percentage is rounded up, the
net result is a 36 percent binaural hearing loss.
9

Multiplying 7.5 by 5, as it now represented the lesser loss, results in a product of 37.5. Adding this amount to
35.65 totals 73.15 which, when divided by 6 totals 12.19, rounded down to 12 percent.
10

See supra note 7.

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The Board finds that appellant has more than a 12 percent binaural loss of hearing.
Appellant’s loss of hearing to the left ear was 37.5 percent with a 35.65 percent hearing loss in
his right ear. As noted, application of the Office’s standard formula results in a 36 percent
binaural hearing loss. Multiplying 36 percent by the 200 weeks provided for binaural hearing
loss results in a total of 72 weeks of compensation. As appellant already received compensation
for 15.6 weeks in the 1976 monaural schedule award, this amount is deducted from 72 weeks to
total 56.4 weeks of compensation. This is the amount of compensation which appellant should
receive for his binaural hearing loss, an amount substantially greater than the 24 weeks awarded
by the Office. Accordingly, the Board will modify the September 15, 2006 Office decision to
reflect that appellant has a 36 percent binaural hearing loss.
In its March 13, 2006 letter, the Office accepted tinnitus in addition to the bilateral
hearing loss. The A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral
hearing impairment may impair speech discrimination. Therefore, add up to five percent for
tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
the activities of daily living.11 However, the record contains no medical evidence directly
addressing the impact of tinnitus on appellant’s activities of daily living. Therefore he is not
entitled to an additional schedule award for this condition.
CONCLUSION
The Board finds that appellant has a 36 percent binaural hearing loss and is eligible to
receive a total of 56.4 weeks of compensation.

11

Supra note 3 at 246.

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ORDER
IT IS HEREBY ORDERED THAT the September 15, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed, as modified.
Issued: October 2, 2007
Washington, DC

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

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

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

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