United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
FEDERAL INVESTIGATIONS DIVISION,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-641
Issued: June 5, 2013

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 January 25, 2013 appellant, through her attorney, filed a timely appeal from an
August 31, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding that she did not establish an employment-related right shoulder condition. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a right shoulder condition causally related to
factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case is before the Board for the fourth time. In a decision dated December 6, 2000,
the Board reversed an October 26, 1998 decision terminating appellant’s compensation benefits.2
The Board found an unresolved conflict in medical opinion. In an August 21, 2009 decision, the
Board set aside a January 10, 2008 decision finding that she did not sustain a right shoulder
condition or permanent impairment due to her accepted work injury.3 The Board determined that
OWCP failed to consider objections to the selection of the impartial medical specialist or verify
that it properly followed its selection procedures. The Board found that a conflict in opinion
remained between Dr. Christopher B. Ryan, an attending Board-certified physiatrist, and
Dr. John D. Douthit, a Board-certified orthopedic surgeon and OWCP referral physician,
regarding whether she had an employment-related permanent impairment or right shoulder
condition. On September 28, 2011 the Board issued an order setting aside an April 13, 2010
decision after finding that OWCP did not establish that it properly selected the impartial medical
examiner in accordance with its procedures.4 The Board determined that the documentation
relevant to the selection of the impartial medical examiner was not legible. The facts of the case
as set forth in the prior decisions and order are hereby incorporated by reference.
By letter dated December 19, 2011, OWCP referred appellant to Dr. Hendrick Arnold, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve a conflict
regarding the extent of any permanent impairment and whether appellant had a right shoulder
condition causally related to factors of her federal employment. The record contains a
December 16, 2011 Form MEO23 Integrated Federal Employees’ Compensation System
(iFECS) report indicating that a referee appointment was scheduled with Dr. Arnold.
On December 30, 2011 appellant’s attorney requested participation in the selection of the
impartial medical examiner. He objected to the selection of Dr. Arnold, arguing that it did not
appear that he was independently selected based on zip code. Counsel noted that appellant lived
14.06 miles from Dr. Arnold’s office and that there were several Board-certified orthopedic
surgeons with offices closer to her home. He submitted a list of 2 physicians within her zip code
and 21 physicians within 10 miles of her residence.
In a report dated January 11, 2012, Dr. Arnold reviewed the medical evidence of record
and discussed appellant’s current complaints of pain in the right wrist and lateral right elbow.5
On examination of the right shoulder, he found pain with abduction and resisted shoulder flexion
and tenderness at the greater tuberosity and bicipital groove with “limited passive motion and
minimal crepitation with passive range of motion.” Dr. Arnold diagnosed bilateral lateral
2

Docket No. 99-926 (issued October 26, 1998). On January 5, 1993 appellant, then a 48-year-old investigator,
filed an occupational disease claim alleging that she sustained bilateral tendinitis causally related to factors of her
federal employment. OWCP accepted the claim for bilateral tendinitis of the forearms and left carpal tunnel
syndrome with ulnar nerve compression. Appellant underwent an ulnar nerve release on March 28, 1994.
3

Docket No. 08-2103 (issued August 21, 2009).

4

Order Remanding Case, Docket No. 10-2343 (issued September 28, 2011).

5

Dr. Arnold also provided an impairment evaluation of the upper extremities.

2

epicondylitis and tendinitis, bilateral right carpometacarpal arthritis due to her work activities
and nonemployment-related osteoarthritis in the wrist and hand joints. Regarding the right
shoulder, he diagnosed a complete rotator cuff tear, adhesive capsulitis, impingement and
bicipital tendinitis as seen on an April 27, 2001 magnetic resonance imaging (MRI) scan study.
Dr. Arnold determined that appellant’s right shoulder condition was unrelated to her employment
based on his review of her medical history. He noted that she did not complain of shoulder
symptoms in a 1998 hearing held in connection with her claim. A physician indicated on
January 3, 2011 that she now wanted to have treatment for her shoulder and questioned whether
it was employment related. Dr. Arnold found that the majority of the medical reports either did
not address a right shoulder condition or found that it was not work related. He concluded that
“the vast weight of the evidence in the documents is that the right shoulder is not related to work
factors of [f]ederal employment.”
By letter dated January 30, 2012, OWCP found that appellant had not provided a valid
objection to the selection of Dr. Arnold and noted that his office was only 14 miles from
appellant’s residence. It provided counsel with the bypass screen shots from its selection of
Dr. Arnold. The screen shots indicated that OWCP bypassed five other physicians using bypass
code C before selecting Dr. Arnold. In its January 30, 2012 letter, OWCP informed appellant’s
attorney that it had bypassed the five physicians because either they or an associate had a prior
association with the case.
By decision dated January 31, 2012, OWCP found that appellant had not established a
right shoulder condition due to factors of her federal employment.6 It determined that
Dr. Arnold’s opinion constituted the weight of the evidence and established that she did not have
an employment-related condition of the right shoulder.
In a progress report dated February 7, 2012, Dr. Ryan reviewed Dr. Arnold’s finding that
appellant’s shoulder condition was not due to her employment. He discussed her symptoms and
adjusted her medication based on Dr. Arnold’s diagnosis of osteoarthritis.
On February 27, 2012 appellant, through her attorney, requested a review of the written
record before an OWCP hearing representative.
By letter dated April 5, 2012, appellant’s attorney questioned why the bypass history
provided by OWCP “only contained 20 of 50 bypasses.”7 In an April 10, 2012 response, OWCP
informed him that there were only five physicians who were bypassed and again enclosed the
bypass list.
By decision dated August 31, 2012, an OWCP hearing representative affirmed the
January 31, 2012 decision. She found that OWCP had provided sufficient evidence that it
selected Dr. Arnold in accordance with its procedures. The hearing representative further
6

In a decision dated February 14, 2012, OWCP granted appellant a schedule award for a one percent permanent
impairment of each upper extremity.
7

In a progress report dated May 8, 2012, Dr. Ryan discussed appellant’s increased finger and wrist symptoms
after gardening.

3

determined that Dr. Arnold’s report was rationalized and thus entitled to special weight as the
impartial medical examiner.
On appeal appellant’s attorney contends that OWCP erred in failing to allow him to
participate in the selection of the impartial medical examiner. He argued that he provided a valid
reason to challenge the selection of the impartial medical examiner as the selection did not
“appear to be based on an independent rotation regarding her zip code….” Counsel referred to
his list of 23 Board-certified orthopedic surgeons located within 10 miles of appellant’s
residence. He asserts that in OWCP District 12, five physiatrists performed all referee
evaluations in that specialty for the past 10 years. Counsel cited M.M.,8 and the cases cited
therein as support for his assertion that an MEO23 form was insufficient documentation to show
that an impartial medical examiner was properly selected. He further argues that the Physicians
Directory System (PDS) was insufficient to show compliance with procedures, citing A.C.9
LEGAL PRECEDENT
Under FECA, Congress has provided that when there is disagreement between the
physician on the part of the United States and that of the employee, “the Secretary shall appoint a
third physician who shall make an examination.”10 The Board has noted that the appointment of
a referee physician under this section is mandatory in cases where there is such disagreement and
that failure of OWCP to properly appoint a medical referee may constitute reversible error.11
In cases arising under section 8123(a), the Board has long recognized the discretion of
the Director to appoint physicians to examine claimants under FECA in the adjudication of
claims.12 FECA does not specify how the appointment of a medical referee is to be
accomplished. Moreover, it is silent as to the qualifications of the physicians to be considered.13
The implementing federal regulations, citing to the Board’s decision in James P. Roberts,
8

Docket No. 12-442 (issued August 28, 2012).

9

Docket No. 09-900 (issued December 4, 2009).

10

5 U.S.C. § 8123(a). In Melvina Jackson, 38 ECAB 443 (1987), the Board addressed the legislative history of
section 8123 in terms of a challenge to whether an OWCP medical adviser’s opinion could create a conflict in
medical evidence. The Board noted that all provisions of section 8123(a) had been contained in FECA since its
original enactment in 1916. See FECA of September 7, 1916, 39 Stat. 743. However, the last sentence of section
8123(a) pertaining to appointment of a third physician where disagreement exists between the employee’s physician
and the physician for the United States was found in a separate section of FECA, originally, section 22, later
codified unchanged as 5 U.S.C. § 771. This section was incorporated into the current section 8123(a) as part of the
general codification of Title 5 of the United States Code in 1966. See FECA of September 6, 1966, 80 Stat. 378.
The legislative intent in enacting the codification of Title 5 was “to restate, without substantive change, the laws
replaced” by codification. See Melvina Jackson, id. at 447.
11

Tony F. Chilefone, 3 ECAB 67 (1949).

12

See William C. Gregory, 4 ECAB 6 (1950).

13

The legislative history on the enactment of FECA in 1916 and on the subsequent amendments contains no
discussion and thus no guidance on the meaning or intended operation of the medical referee provisions. Melvina
Jackson, supra note 10.

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provide that development of the claim is appropriate when a conflict arises between medical
opinions of virtually equal weight.14 The regulations state:
“If a conflict exists between the medical opinion of the employee’s physician and
the medical opinion of either a second opinion physician or OWCP’s medical
adviser or consultant, OWCP shall appoint a third physician to make an
examination (see § 10.502). This is called a referee examination. OWCP will
select a physician who is qualified in the appropriate specialty and who has had
no prior connection with the case.”15
Congress did not address the manner by which an impartial medical referee is to be
selected.16 Rather, this was left to the expertise of the Director in administering the
compensation program created under FECA.17 It is an established principle, however, that
FECA is a remedial statute and should be broadly construed in favor of the employee to
effectuate its purpose and not in derogation of an employee’s rights.18 The primary rule of
statutory construction is to give effect to legislative intent and, in arriving at intent; it is well
settled that the words in a statute should be construed according to their common usage.19 The
Board notes that the Director has been delegated authority under FECA in the selection of a
medical referee physician through section 8123(a).
Under the Federal (FECA) Procedure Manual, the Director has exercised discretion to
implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.20
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.21 Physicians who may not serve as impartial specialists
include those employed by, under contract to or regularly associated with federal agencies;22
14

20 C.F.R. § 10.321(a); James P. Roberts, 31 ECAB 1010 (1980).

15

Id. at § 10.321(b). OWCP will pay for second opinion and referee medical examinations, reimbursing the
employee all necessary and reasonable expenses incidental to such examination. 20 C.F.R. § 10.322.
16

The Board has noted that the terms of section 8123(a) are “not clear and unambiguous.” Melvina Jackson,
supra note 10. The Board found that the definition of the term “examination” under FECA was sufficiently broad in
scope as to encompass the interpretation of an examination by OWCP’s medical adviser. Id. at 448. To effectuate
the purpose of the medical referee provision, the Board found that a medical adviser who did not physically examine
the employee may, in appropriate circumstances, create a conflict in medical opinion. Id. at 449.
17

See, e.g., Harry D. Butler, 43 ECAB 859, 966 (1992) (the Director was delegated discretion in determining the
manner by which permanent impairment is evaluated for schedule award purposes).
18

Stephen R. Lubin, 43 ECAB 564, 569 (1992), citing Erin J. Belue, 13 ECAB 88 (1961) and Samuel Berlin, 4
ECAB 39 (1950).
19

Erin J. Belue, supra note 18. See also Sutherland Stat. Const. § 65.03, 239-40 (4th ed. 1986).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

21

Id. at Chapter 3.500.4(b)(1).

22

Id. at Chapter 3.500.4(b)(3)(a).

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physicians previously connected with the claim or claimant or physicians in partnership with
those already so connected23 and physicians who have acted as a medical consultant to OWCP.24
The fact that a physician has conducted second opinion examinations in connection with FECA
claims does not eliminate that individual from serving as an impartial referee in a case in which
he or she has no prior involvement.25
In turn, the Director has delegated authority to each district OWCP for selection of the
referee physician by use of the Medical Management Application (MMA) within iFECS.26 This
application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.27 MMA in iFECS replaces
the prior physician directory system method of appointment.28 It provides for a rotation among
physicians from the American Board of Medical Specialties, including the medical boards of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides) and those physicians Board-certified with the American Osteopathic
Association.29
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.30
The medical scheduler inputs the claim number into the application, from which the claimant’s
home zip code is loaded.31 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.32 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023, appointment notification report for imaging into the case

23

Id. at Chapter 3.500.5(b)(3)(b).

24

Id. at Chapter 3.500.4(b)(3)(c).

25

See supra note 24.

26

Id. at Chapter 3.500.4(b)(6); see also R.C., Docket No. 12-468 (issued October 15, 2012).

27

Id. at Chapter 3.500.4(b)(6)(a).

28

Id. at Chapter 3.500.5.

29

Id. at Chapter 3.500.5(a).

30

Id. at Chapter 3.500.5(b).

31

Id. at Chapter 3.500.5(c).

32

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the MMA will present the next physician based on specialty and zip code.

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file.33 Once an appointment with a medical referee is scheduled the claimant and any authorized
representative is to be notified.34
Under the procedure manual, a claimant may request to participate in the selection of the
referee physician or may object to the physician selected under the MMA. In such instances, the
claimant must provide valid reasons for any request or objection to the claims examiner.35 The
right of the claimant to participate in the selection of the medical referee is not unqualified. He
or she must provide a valid reason, not limited to: (a) documented bias by the selected
physician; (b) documented unprofessional conduct by the selected physician; (c) a female
claimant who requests a female physician when gynecological examination is required; or (d) a
claimant with a medically documented inability to travel to the arranged appointment when an
appropriate specialist may be located closer.36 When the reasons are considered acceptable, the
claimant will be provided with a list of three specialists available through the MMA.37 If the
reason offered is determined to be invalid, a formal denial will issue if requested.38
ANALYSIS
OWCP determined that a conflict arose between Dr. Ryan, appellant’s physician, and
Dr. Douthit, who provided a second opinion, regarding whether she had an employment-related
right shoulder condition. It referred her to Dr. Arnold, a Board-certified orthopedic surgeon, for
an impartial medical examination.39
On appeal appellant’s attorney contends that Dr. Arnold was not properly selected as the
impartial medical examiner. OWCP has an obligation to verify that it selected Dr. Arnold in a
fair and unbiased manner. It maintains record for this very purpose.40 The record contains a
December 16, 2011 Form MEO23 iFECS report stating that an impartial medical examination
was scheduled with Dr. Arnold. The record also contains bypass screen shots for five other
Board-certified orthopedic surgeons. The physicians were bypassed under Code C, meaning that

33

Id. at Chapter 3.500.5(g). The MEO23 serves as documentary evidence that the referee appointment was
scheduled through the MMA rotational system. Should an issue arise concerning the selection of the referee
specialist, a copy of the MEO23 may be reproduced and copied for the case record.
34

Id. at Chapter 3.500.4(d). Notice should include the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d) and information on how to claim travel expenses.
35

Id. at Chapter 3.500.4(f).

36

Id. at Chapter 3.500.4(f)(1).

37

Id. at Chapter 3.500.4(f)(1)(e)(2).

38

Id. at Chapter 3.500.4(f)(1)(e)(3).

39

OWCP also found a conflict on the extent of permanent impairment. Based on Dr. Arnold’s report, it granted
her a schedule award.
40

See M.A., Docket No. 07-1344 (issued February 19, 2008).

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either they or a partner had a prior association with the case.41 The Board finds that OWCP
provided documentation and properly utilized its MMA system in selecting Dr. Arnold as the
impartial medical examiner.42 The Board has placed great importance on the appearance as well
as the fact of impartiality and only if the selection procedures which were designed to achieve
this result are scrupulously followed may the selected physician carry the special weight
accorded to an impartial specialist. As OWCP has met its affirmative obligation to establish that
it properly followed its selection procedures, the Board finds that counsel’s argument is not
substantiated.43
Counsel, citing M.M.,44 argued that an MEO23 was insufficient to show proper selection
of the impartial medical examiner. In M.M., the Board found that the record was insufficient to
show proper selection of the impartial medical examiner as the record contained no other screen
shots or other evidence regarding selection other than the MEO23. In this case, however, OWCP
provided screen shots showing the bypassed physicians. Counsel also argued that pursuant to
A.C., the PDS was inadequate to show compliance with procedures. In A.C., the Board found
that OWCP failed to address the arguments raised by appellant’s attorney challenging application
of the PDS and remanded the case for that purpose. OWCP, however, no longer uses the PDS to
select the impartial medical examiner. As discussed, the medical management application in
iFECS replaced the prior PDS method of appointment.45 It provides for a rotation among
physicians from the American Board of Medical Specialties, including the medical boards of the
A.M.A., Guides and those physicians Board-certified with the American Osteopathic
Association.46 Selection of the referee physician is made through use of the application by a
medical scheduler. The claims examiner may not dictate the physician to serve as the referee
examiner.47 The medical scheduler imputed the claim number into the application, from which
the claimant’s home zip code is loaded.48 The scheduler chooses the type of examination to be
performed (second opinion or impartial referee) and the applicable medical specialty. The next
physician in the roster appears on the screen and remains until an appointment is scheduled or
the physician is bypassed. If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare a Form ME023, appointment notification report for imaging

41

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.600 (July 2011).

42

See N.C., Docket No. 12-1718 (issued April 11, 2013).

43

Cf. H.W., Docket No. 10-404 (issued September 28, 2011) (where the Form MEO23 iFECS report was the only
documentation of the scheduled impartial medical specialist examination and there were no screen shots
substantiating the selection of the impartial medical specialist. The Board remanded the case by an order for
selection of another impartial medical specialist).
44

See supra note 8.

45

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5 (July 2011).

46

Id. at Chapter 3.500(a).

47

Id. at Chapter 3.500.5(b).

48

Id. at Chapter 3.500.5(c).

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into the case file.49 Once an appointment with a medical referee is scheduled the claimant and
any authorized representative is to be notified.50 Appellant has not submitted any evidence
showing that the MMA was improperly utilized to select Dr. Arnold as the impartial medical
examiner.51
Counsel also alleges that OWCP erred by failing to allow him to participate in the
selection of the impartial medical examiner. He contends that the selection appeared biased
based on the fact that only five physiatrists performed all referee physicians in that specialty over
the past 10 years. Dr. Arnold, however, is a Board-certified orthopedic surgeon rather than a
physiatrist. OWCP’s procedures state that a claimant may be allowed to participate in selecting
the referee physician when providing a reason for doing so, for example, documented bias by the
selected physician or documented unprofessional conduct by the selected physician.52 Counsel
has not alleged bias or unprofessional conduct but rather that OWCP did not follow its selection
procedures. However, as discussed, there is no evidence that OWCP improperly applied the
medical management application in choosing Dr. Arnold as impartial medical examiner.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.53 The Board finds that the opinion of Dr. Arnold is
well rationalized and based on a proper factual and medical history. In a report dated
January 11, 2012, Dr. Arnold diagnosed a complete rotator cuff tear, adhesive capsulitis,
impingement and bicipital tendinitis based on an April 27, 2001 MRI scan study. He concluded
that the right shoulder condition was unrelated to the accepted work injury. Dr. Arnold
accurately summarized the relevant medical evidence, provided detailed findings on examination
and reached conclusions about appellant’s condition which comported with his findings.54 He
explained that a thorough review of the medical evidence did not support that she sustained a
right shoulder condition related to employment. Dr. Arnold provided rationale for his opinion by
explaining that appellant did not allege that her shoulder condition was work related at a 1998
hearing and the contemporaneous medical evidence did not support an employment-related
shoulder condition. As his report is detailed, well rationalized and based on a proper factual
background, his opinion is entitled to the special weight accorded an impartial medical
examiner.55 Appellant, consequently, has not established that she sustained a right shoulder
condition causally related to factors of her federal employment.

49

Id. at Chapter 3.500.5(g).

50

Id. at Chapter 3.500.4(d).

51

See T.T., Docket No. 12-1358 (issued April 11, 2013).

52

See e.g., Leonard W. Waggoner, 37 ECAB 676 (1986).

53

J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

54

Manuel Gill, 52 ECAB 282 (2001).

55

See J.M., supra note 53; Kathryn E. Demarsh, 56 ECAB 677 (2005).

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In a report dated February 7, 2012, Dr. Ryan discussed Dr. Arnold’s opinion that
appellant’s right shoulder condition was not employment related. He did not provide an
independent assessment of the cause of the right shoulder condition. Further, Dr. Ryan was on
one side of the conflict created with Dr. Douthit. A medical report from a physician on one side
of a conflict resolved by an impartial medical examiner is generally insufficient to overcome the
weight accorded the report of an impartial medical examiner or create a new conflict.56
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a right shoulder
condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2013
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

56

Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Egg Harbor Township, NJ,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0048
Issued: June 24, 2019

Case Submitted on the Record

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

JURISDICTION
On October 6, 2017 appellant, through counsel, filed a timely appeal from an August 1,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period May 14, 2010 to January 30, 2012 causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
Appellant, then a 47-year-old transportation security specialist, sustained an employment
injury on June 28, 2003 after stepping into a hole and falling down while in the performance of
duty. On November 17, 2003 OWCP accepted that she sustained contusions to both hands and
both knees. Appellant’s claim was later upgraded to accept additional conditions of bilateral carpal
tunnel syndrome and right knee medial meniscus tear. She was placed on the periodic
compensation rolls. Appellant was later placed on the supplemental rolls and paid wage-loss
compensation through May 13, 2010.4
On January 30, 2013 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period May 14, 2010 to January 30, 2012. By decision dated January 30, 2014, OWCP denied
her claim for disability for the period claimed because the medical evidence then of record failed
to establish total disability at that time due to the employment injury. Appellant requested an oral
hearing. Following the hearing, on June 11, 2014, by decision dated August 27, 2014, an OWCP
hearing representative affirmed the prior decision. By decision dated August 26, 2015, the Board
affirmed OWCP’s decision because appellant had not met her burden of proof to establish
disability for the period May 14, 2010 to January 30, 2012 causally related to her accepted
employment injury.5
Following the last Board decision appellant submitted additional medical evidence
including an August 11, 2011 report from Dr. Andre M. Hu, a Board-certified physiatrist, who
indicated that she was seen regarding issue related to her fibromyalgia as well as a prescription
form dated August 14, 2012. In an August 22, 2016 note, Dr. Scott M. Fried, a Board-certified
orthopedic surgeon, diagnosed medial neuropathy right and left, radial neuropathy right and left
radial tunnel, ulnar neuropathy left, brachial plexopathy/cervical radiculopathy right with long
thoracic neuritis and scapular winging grade 2, sympathetically-mediated pain syndrome of the
bilateral upper extremities, low back injury by history, recurrent carpal tunnel bilaterally, status
postsurgery for left and right median nerve carpal tunnel decompression in 2004, and cervical
strain and sprain with radiculopathy right, date of injury June 28, 2013. He advised that appellant

3

Docket No. 11-1320 (issued September 5, 2012); Docket No. 15-0577 (issued August 26, 2015) petition for recon.
denied (issued April 20, 2016).
4

By decision dated May 14, 2010, OWCP issued a rescission of the acceptance of her claim. By decision dated
January 4, 2013, it reversed its rescission and retroactively reinstated appellant’s medical benefits. OWCP advised
appellant that she must file claims for compensation if seeking wage-loss compensation benefits.
5

Id.

2

remained symptomatic, and was not capable of returning to regular work activities. Dr. Fried
recommended that she continue physical therapy.
On August 26, 2016 appellant, through counsel, requested reconsideration.
In a July 6, 2016 report, Dr. Fried reiterated his diagnoses and opined that although
appellant had treatment, there had been ongoing symptomatology. He performed a physical
examination and recommended a functional capacity examination (FCE) to evaluate her
capabilities and limitations. Dr. Fried noted this would provide a clear picture of what is and is
not within reasonable and actual limits concerning work activity and also activities of daily living.
In a report dated August 22, 2016, Dr. Fried noted that appellant was not working, noting
that she remained symptomatic and limited, but was making progress with therapy. He again noted
the need for an FCE. Dr. Fried reported that appellant remained symptomatic, and could not return
to regular work activities.
On October 12, 2016 appellant underwent an electromyogram and nerve conduction
velocity (EMG/NCV) testing which demonstrated mild right brachial plexus level nerve
impairment, significant left ulnar nerve impairment, borderline right posterior interosseous nerve
impairment, no evidence of residual or recurrent bilateral median nerve impairments, and no
evidence differentially to indicate cervical nerve root radicular impairment.
In a February 7, 2017 report, Dr. Fried performed a physical examination and reiterated the
diagnoses he had previously set forth and continued to advise that appellant remained symptomatic
and disabled for work.
In a second report dated February 7, 2017, Dr. Fried noted that findings of an ultrasound
were consistent with the ongoing injures and complaints of appellant and that this treatment was
indicated to “hopefully prevent” progression of these injuries and to avoid surgery.
Further diagnostic testing reports dated February 7, 2017 revealed substantial swelling of
the nerve, perineural scarring, hypoechoic changes, evidence of flexor tenosynovitis, and dynamic
fisting causing nerve compression at 80 percent consistent with carpal tunnel median nerve
compression. An ultrasound of the right brachial plexus, also dated February 7, 2017, showed
perineural scarring and swelling of the nerve at grade 1 and 1, respectively, dynamic abduction
testing, evidence of a traction fixation neuropathy indicative of proximal tractioning of the plexus
with changes in the perineural structures shown by the abnormal surrounding echos, hypoechoic
changes, noted swelling, and scarring of the anterior scalene muscle with decreased contractility.
Appellant further submitted physical therapy reports dated September 16, 2016 through
March 7, 2017.
By decision dated August 1, 2017, OWCP denied modification of its prior decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.7
Whether a particular injury causes an employee to become disabled from work and the
duration of that disability are medical issues that must be proven by a preponderance of reliable,
probative, and substantial medical opinion evidence.8 Findings on examination and a physician’s
opinion, supported by medical rationale, are needed to show how the injury caused the employee’s
disability from his or her particular work.9
For each period of disability claimed, the employee must establish that he or she was
disabled from work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so would essentially
allow the employee to self-certify his or her disability and entitlement to compensation.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period May 14, 2010 to January 30, 2012 causally related to her accepted employment
injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 27, 2014 decision because the Board
considered that evidence in its August 26, 2015 decision and found it insufficient to establish total
disability for the claimed period. Findings made in prior Board decisions are res judicata absent
any further review by OWCP under section 8128 of FECA.11
While OWCP accepted that appellant sustained contusions to both hands and both knees,
bilateral carpal tunnel syndrome, and a right knee medial meniscus tear, she bears the burden of
proof to establish through rationalized medical evidence that she was totally disabled during the
claimed period and that her disability was causally related to the accepted injury.12

6

Supra note 1.

7

K.S., Docket No. 18-0954 (issued February 26, 2019).

8

T.L., Docket No. 17-1391 (issued July 3, 2018).

9

V.H., Docket No. 18-1282 (issued April 2, 2019).

10

Id.

11

See J.M., Docket No. 18-1467 (issued March 5, 2019).

12

See V.P., Docket No. 09-337 (issued August 4, 2009).

4

In support of her claim for wage-loss compensation for total disability appellant submitted
reports from her attending physician, Dr. Fried. In his reports, Dr. Fried consistently advised that
she remained “symptomatic and totally disabled for work.” Although he opined that appellant was
totally disabled from work, his opinion is conclusory in nature, and fails to explain in detail how
the accepted medical conditions of contusions to both hands and both knees, bilateral carpal tunnel
syndrome, and a right knee medial meniscus tear were responsible for appellant’s disability and
why she could not perform her federal employment during the period claimed.13 Consequently,
the Board finds that Dr. Fried’s reports are insufficient to establish appellant’s claim that she was
totally disabled for the period May 14, 2010 to January 30, 2012 causally related to her
employment injury.
Appellant resubmitted an August 11, 2011 report from Dr. Hu, but the Board finds that this
medical evidence failed to provide a probative medical opinion on whether appellant was disabled
on the dates at issue due to her accepted conditions.14 Consequently, the above-noted evidence is
insufficient to satisfy appellant’s burden of proof.
Appellant also submitted a series of diagnostic test results. However, the Board has
consistently held that diagnostic test studies are of limited probative value as they do not address
whether the employment incident caused periods of disability.15
Finally, appellant submitted reports from physical therapists, but these documents do not
constitute competent medical evidence because a physical therapist is not considered a “physician”
as defined under FECA.16 Consequently, their findings or opinions will not suffice for purposes
of establishing entitlement to compensation benefits.17
The Board finds appellant has not submitted sufficiently-rationalized medical opinion
evidence establishing that she was disabled during the period May 14, 2010 to January 30, 2012
causally related to the employment injury. Thus, appellant has not met her burden of proof to
establish that she is entitled to wage-loss compensation for total disability for this period.
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.

13

See J.J., Docket No. 15-1329 (issued December 18, 2015).

14

Id.

15

See J.S., Docket No. 17-1039 (issued October 6, 2017).

16
5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue can only be resolved through the submission of probative medical evidence from a
physician).
17

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period from May 14, 2010 to January 30, 2012 causally related to her accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Portland, OR, Employer
__________________________________________

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

Docket No. 10-1046
Issued: January 19, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from the December 8, 2009
overpayment decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the overpayment determination in
this case.1
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $50,481.07, compromised to $29,932.50, as he received compensation for total
disability following the expiration of his schedule award rather than at the rate of the established
wage-earning capacity; (2) whether appellant was at fault in the creation of the overpayment

1

In an August 7, 2009 decision, the Office denied appellant’s claim for a consequential left toenail condition and
denied modification of the February 18, 2000 wage-earning capacity determination. As appellant did not file for
review of this decision within 180 days of issuance, it is not before the Board in the present appeal. See 20 C.F.R.
§ 501.3(e).

such that it was not eligible for waiver; and (3) whether the Office properly directed recovery of
the overpayment at $75.00 every 28 days from his continuing compensation.
FACTUAL HISTORY
The Office accepted that appellant, then a 31-year-old biological technician, sustained a
crush injury to his left leg on July 14, 1992 in a boating accident for which he underwent surgery
for a three-compartment fasciotomy. Appellant returned to modified duty in October 1992 and
was released to regular-duty work as of January 25, 1993. He sustained another accepted injury
to his left leg and low back on August 27, 1994 in a boating accident from which he was found
totally disabled. Appellant received medical treatment for post-traumatic left leg sympathetic
dystrophy and saphenous vein insufficiency requiring surgical correction in 1995. The Office
subsequently accepted a consequential post-traumatic stress disorder. Appellant was referred to
vocational rehabilitation for job placement services in November 1996.
On March 11, 1998 the Office granted appellant a schedule award for 38 percent
permanent impairment of the left leg; however, he was notified that payment could not be made
under the award while he was in receipt of compensation for total disability during vocational
rehabilitation. Appellant was advised that, upon completion of vocational rehabilitation, the
schedule award could be paid.
The record reflects that the Office approved training as an electronic technician or
electronic mechanic at the College of the Redwoods for two years commencing with the fall
semester of 1997. On May 22, 1999 appellant earned an associate in science degree in electronic
technology. After graduation, vocational placement services were provided for 90 days but
appellant did not secure employment in the private sector. Rather, in August 1999 appellant
reenrolled at the college and took computer courses for an additional associate degree.2
On December 7, 1999 the Office notified appellant that his compensation benefits would
be reduced based on his ability to earn wages in the constructed position of an electronic
technician.
In a February 18, 2000 decision, the Office reduced appellant’s wage-loss compensation,
finding that he had a 53 percent wage-earning capacity as an electronic technician.
In a February 23, 2000 letter, the Office advised appellant that payment under the wageearning capacity determination would be interrupted in order that he could receive payment of
the schedule award. Appellant was advised that compensation paid from February 27, 2000
through April 4, 2002 would be for his 38 percent left leg impairment and, upon the expiration of
the schedule award, his monetary compensation would be reduced to reflect the February 18,
2000 wage-earning capacity determination. The Office reissued the schedule award decision on
February 23, 2000.
On June 26 and August 15, 2000 appellant sought review of the wage-earning capacity
determination, contending that he remained totally disabled due to his post-traumatic stress
2

By the spring of 2003, appellant had earned a third degree from the college.

2

disorder.3 In an October 4, 2000 decision, the Office denied modification of the February 18,
2000 wage-earning capacity decision.
Appellant received compensation under the schedule award through April 4, 2002. The
record reflects, however, that as of April 5, 2002 continuing wage-loss compensation was paid
based on the rate for total disability and not the 53 percent rate under the February 18, 2000
wage-earning capacity determination.
On November 1, 2007 Office payment records noted that appellant’s schedule award
ended as of April 4, 2002 but compensation paid after that date was not reduced to reflect his 53
percent wage-earning capacity. From April 5, 2002 to October 27, 2007, appellant received
wage-loss compensation in the amount of $95,230.67 but was only entitled to monetary
compensation of $44,749.60, the difference representing an overpayment in the amount of
$50,481.07. It reduced appellant’s continuing compensation as of October 28, 2007 to reflect his
wage-earning capacity.
On August 7, 2009 the Office issued a preliminary overpayment determination in the
amount of $50,481.07 for the period April 5, 2002 to October 27, 2007. It found that appellant
received monetary compensation for wage loss after the expiration of the schedule award at the
rate of total disability rather than at the 53 percent wage-earning capacity determination. The
Office found appellant was at fault in the creation of the overpayment. It noted that, after
successful vocational rehabilitation, he was rated as having the wage-earning capacity of an
electronic technician. Appellant’s monetary compensation was not immediately reduced;
however, as of February 23, 2000, he was advised that continuing payment would be made under
the schedule award. He was notified that compensation paid after the expiration of the schedule
award would be based on the February 18, 2000 wage-earning capacity. Appellant was found to
have accepted payments after April 4, 2002 he knew or should have known to be incorrect. The
Office advised appellant as to his right to a prerecoupment hearing if he contested the
overpayment and to submit any evidence or argument concerning the preliminary determination.
On August 28, 2009 appellant requested a telephone conference that was held on
October 1, 2009. The record reflects that the claims examiner discussed the issue of the creation
of the overpayment and the finding of fault. He explained that the February 23, 2000 schedule
award cover letter advised that entitlement under the award would continue until April 4, 2002
when appellant’s compensation would be reduced beginning April 5, 2002 to reflect the wageearning capacity determination. Appellant was found at fault because the record did not reflect
any effort on his part to contact the Office after April 5, 2002 to determine why compensation
payments were not reduced as was stated. With regard to the financial information submitted
prior to the conference call, appellant stated that he rented his current home for $675.00 a month,
that his utility bill ran from $40.00 to $50.00 a month and that his home was heated primarily
with fire wood gathered from the surrounding forest. Appellant estimated that he spent $100.00
a month on food and clothing, an amount the claims examiner noted to be a low figure. He
stated that he received a supplemental food service because of his low income and had
approximately $3,000.00 in credit card debt. Appellant reported receiving monthly social
3

Appellant initially sought a written review of the wage-earning capacity determination on April 19, 2000. This
request was found untimely in a June 7, 2000 decision of the Branch of Hearings and Review.

3

security benefits of $192.00 and compensation benefits from the Office of $692.00 every 28
days. He reported no other assets, such as stocks or bonds. He estimated that he had about $2.00
in a savings account and owned three motor vehicles worth collectively about $1,100.00.
In a December 8, 2009 decision, the Office finalized the preliminary overpayment of
compensation determination in the amount of $50,481.07 for which appellant was at fault in the
creation. In considering recovery of the overpayment, the Office determined that appellant had a
monthly income of $884.00 and that his monthly expenses were at or exceeded his income with
no other substantial assets. Given appellant’s financial circumstances, the amount of the
overpayment was compromised by $20,548.57, leaving an outstanding debt of $29,932.50. The
claims examiner considered appellant’s life expectancy at 30.7 years and entitlement to
compensation of $692.00 every 28 days. The Office determined that repayment of $75.00 from
each continuing compensation payment represented 11 percent of gross compensation, at the
lower end of the normal range of repayment of 10 to 15 percent. At $975.00 a year, the
outstanding overpayment balance would be recovered within appellant’s anticipated lifetime if
no interest or penalties were included. The Office affirmed the overpayment as compromised
without interest or penalty and directed recovery at $75.00 from continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of the Federal Employees’ Compensation Act provides that where an
overpayment of compensation has been made because of an error of fact or law, adjustment shall
be made by decreasing later payments to which an individual is entitled.4
In administering benefits under the Act, the Board has noted that the Office needs to
fairly administer payments to injured employees who sustain both periods of wage loss or of loss
of wage-earning capacity and permanent impairment qualifying them for schedule awards. This
has led to establishing certain norms for coordinating receipt of wage-loss and schedule award
compensation.5 These administrative practices call for interruption and then subsequent
resumption of compensation for wage-loss benefits for the payment of a schedule award. Where
an injured employee is receiving disability compensation up to the date of a schedule award,
wage-loss compensation must be reinstated at the appropriate level following expiration of the
schedule award.6
ANALYSIS -- ISSUE 1
Appellant was in receipt of compensation for wage loss prior to the commencement of his
schedule award. In 1998, the Office determined that he had a 38 percent impairment of his left
leg due to his accepted injuries; however, it postponed payment under the schedule award while
appellant was participating in vocational rehabilitation. Upon his graduation from the degree
program at College of the Redwoods in May 1999, appellant received placement services which
4

Ralph P. Beachum, Sr., 55 ECAB 442 (2004); Marlon G. Massey, 49 ECAB 650 (1998).

5

See Arthur E. Billigmeier, 42 ECAB 506 (1991).

6

See Sherry A. Hunt, 49 ECAB 467 (1998); Anthony Luczczynski, 43 ECAB 1129 (1992).

4

were unsuccessful. On December 7, 1999 he was notified that his wage-loss benefits would be
reduced to represent his capacity to earn wages as an electronic technician. The Office adjusted
appellant’s wage-loss compensation in a February 18, 2000 decision, finding that he had a 53
percent wage-earning capacity following his successful vocational rehabilitation and training as
an electronic technician. On February 23, 2000 appellant was advised by letter that payment
under the schedule award would be made effective February 27, 2000 through April 4, 2002.
The Office notified appellant that, upon expiration of his schedule award, on April 5, 2002 wageloss compensation would be reinstated at the reduced level reflecting the February 18, 2000
wage-earning capacity determination.
After the expiration of the schedule award on April 4, 2002, appellant was reinstated on
wage-loss compensation at the rate of total disability from April 5, 2002 through
October 27, 2007. The Office was negligent in failing to reinstate compensation at the reduced
level of the wage-earning capacity determination. For this period, compensation was paid in the
amount of $95,230.67, to which appellant was entitled to $44,749.60. The difference resulted in
an overpayment of wage-loss compensation in the amount of $50,481.07. Because appellant was
not entitled to reinstatement of wage loss at the rate of total disability, an overpayment was
created in this amount. The Board will affirm the fact and amount of compensation.
In contesting the fact of overpayment on appeal, appellant’s contentions pertain primarily
to being totally disabled due to his accepted post-traumatic stress disorder. That issue, however,
is not currently before the Board. The Office issued an August 7, 2009 decision concerning
various aspects of appellant’s medical treatment and claims of disability. It denied modification
of the 2000 wage-earning capacity determination. Appellant did not timely seek review of this
decision and the Board does not have jurisdiction over that aspect of his claim in this appeal.7
LEGAL PRECEDENT -- ISSUE 2
Section 10.433 of the Office’s implementing federal regulations provide that, in
determining whether a claimant is at fault in the creation of an overpayment, it will consider all
pertinent circumstances. An individual is with fault in the creation of an overpayment who:
(1) made an incorrect statement as to a material fact which he or she knew or should have known
to be incorrect; or (2) failed to provide information which he or she knew or should have known
to be material; or (3) accepted a payment which he or she knew or should have known to be
incorrect.8
In determining whether a claimant is at fault in creating an overpayment, the Office will
consider the circumstances surrounding the overpayment.9 The fact that the Office was negligent

7

See supra note 1. This decision does not preclude appellant from submitting evidence or argument to the Office
should he seek modification of the wage-earning capacity determination.
8

J.S., 58 ECAB 515 (2007); Harold F. Franklin, 57 ECAB 387 (2006).

9

See Ricky Greenwood, 57 ECAB 462 (2006); William F. Salmonson, 54 ECAB 152 (2002).

5

in making payment to a claimant does not relieve the claimant of fault in accepting incorrect
payments.10
ANALYSIS -- ISSUE 2
On February 23, 2000 the Office issued appellant’s schedule award for 38 percent loss of
use of his left leg. The schedule award noted that it was in payment of compensation for the
period February 27, 2000 through April 4, 2002. In a separate cover letter, the Office notified
appellant that payments he received starting February 27, 2000 were for compensation under the
schedule award. Such payments would continue through April 4, 2002 at which time he would
be reinstated on wage loss at the reduced level determined by the February 18, 2000 wageearning capacity determination. Although the Office was negligent by failing to reduce
appellant’s wage-loss compensation as of April 5, 2002, this does not excuse his acceptance of
compensation after that date at the rate of total disability.
Appellant was properly informed in the February 18, 2000 wage-earning capacity
determination that his new basic rate of compensation was reduced to $539.00 each four weeks.
Under the schedule award issued five days later, he was advised that payment would be made
every four weeks commencing February 27, 2000 in the amount of $1,148.00. The Office’s
February 23, 2000 cover letter notified appellant that he was found no longer totally disabled and
that payment under the wage-earning capacity would be interrupted in order to pay his schedule
award entitlement for permanent impairment of his left leg. When the schedule award expired
on April 4, 2002, “[b]eginning April 5, 2002 your compensation payments will be reduced to
reflect your wage-earning ability.” The record establishes that appellant was appropriately
notified of the nature of the benefits he was receiving from February 27, 2000 through
April 4, 2002. When the Office failed to reduce his compensation as of April 5, 2002, he made
no inquiry as to the continuing payment of benefits at the rate of total disability. Appellant
contended before the Office that it was his understanding that he had been found totally disabled
and that he believed the compensation paid was based on that rate, but as noted, he was clearly
notified of the reduction in wage-loss benefits based on his capacity to earn wages in the
constructed position of an electronic technician.
The record establishes that appellant accepted payments that he knew or should have
known to be incorrect from April 5, 2002 to October 27, 2007. Appellant should have known he
was accepting payments that were incorrect after April 4, 2002 based on the information
provided by the Office. The Board finds that he was at fault in the creation of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 provides that when an overpayment has been made to an individual because
of an error of fact or law, adjustment shall be made by decreasing later payments to which the
individual is entitled.11
10

Neill D. DeWald, 57 ECAB 451 (2006); Dale Mackelprang, 55 ECAB 174 (2003).

11

The Board’s jurisdiction over recovery of an overpayment is limited to a review of those cases where the Office
seeks recovery from continuing compensation payments. See Terry A. Keister, 56 ECAB 559 (2005).

6

Section 10.441 of the Office’s federal regulations provide that, when an overpayment has
been made to an individual who is entitled to further payments, the individual shall refund to the
Office the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, the Office shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual and any other relevant factors so as
to minimize any hardship.12
Under the Office’s procedure manual, the compromise of all or part of the overpayment
and any charges may be made depending upon the individual claimant’s financial circumstances
in order to set a repayment schedule. Compromise of the principal of the overpayment can be
considered if application of the interest charges would extend the period of repayment by more
than 35 percent. Such a determination is made at the time the repayment schedule is
established.13 Compromise is a matter which rests in the discretion of the Office.14
ANALYSIS -- ISSUE 3
In setting the rate of recovery from appellant’s continuing compensation, the Office
claims examiner considered the fact that recovery of the principal balance of $50,481.07 with
interest would take appellant 908.66 months to repay, or over 75 years. As appellant had a life
expectancy of some 30.7 years, the period in which repayment could be made was 368.4 months.
By compromising the balance to $29,932.50 without interest or penalty, it was determined that
appellant could repay the reduced balance at a rate of $75.00 per payment cycle, or $975.00 a
year, from his continuing compensation over the period of his remaining life expectancy.
The record reflects that the Office exercised its discretion to compromise the outstanding
balance of the overpayment in setting the rate of recovery from appellant’s continuing
compensation. In doing so, it considered those factors under section 10.441, such as appellant’s
age, life expectancy, the rate of compensation paid and the period in which recovery could be
obtained with reference to his financial circumstances. There is no evidence of record to
establish that the Office abused its discretion is setting the rate of recovery of $75.00 a payment
cycle from appellant’s continuing compensation so as to minimize financial hardship.
CONCLUSION
The Board finds that appellant received an overpayment of $50,481.07 from April 5,
2002 to October 27, 2007 for which he was at fault in creating. The Board further finds that the
Office did not abuse its discretion in compromising the principal amount of the outstanding debt
to $29,932.50 or in setting the rate of recovery from continuing compensation at $75.00 every 28
days.
12

20 C.F.R. § 10.441(a).

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.5
(May 2004). See Jorge E. Diaz, 53 ECAB 403 (2002).
14

Jorge E. Diaz, supra note 13 and Linda D. Lane, 46 ECAB 727 (1995). See also Larry Towns, Docket No. 021059 (issued July 29, 2003) and Fred C. Smith, Docket No. 02-219 (issued April 11, 2003).

7

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 19, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

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.

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

3


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

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

Docket No. 21-0037
Issued: May 27, 2021

Case Submitted on the Record

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

JURISDICTION
On October 9, 2020 appellant filed a timely appeal from a September 29, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted June 18, 2020 employment incident.
FACTUAL HISTORY
On June 29, 2020 appellant, then a 37-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 18, 2020 he became dehydrated due to the heat and developed
cramping as well as elevated creatine kinase levels in his kidneys while in the performance of duty.
1

5 U.S.C. § 8101 et seq.

On the reverse side of the claim form, appellant’s supervisor indicated that he had stopped work
on June 20, 2020.
In support of his claim, appellant submitted a report dated June 20, 2020 from Dr. Alicia B.
Fernandez, Board-certified in internal medicine. Dr. Fernandez diagnosed appellant with
rhabdomyolysis. She related that he could return to work on June 24, 2020.
In a hospital discharge record dated June 21, 2020, Dr. Fernandez noted that appellant
presented on June 20, 2020 with muscle cramps in the back of his thighs and legs, and arms. She
noted that appellant’s symptoms started two days prior as he was finishing his work shift.
Appellant related that he had been very hot and sweating. Dr. Fernandez noted that salt had left
his body as his sweat dried. Appellant noted that he had not taken water on his mail route like he
normally did. Dr. Fernandez noted a diagnosis of rhabdomyolysis.
In notes dated June 25, 2020, Dr. Dennis Sparks, Board-certified in family practice, related
that appellant was seen for rhabdomyolysis, and had been referred to a rheumatologist. He
prescribed medication for irritable bowel syndrome, with diarrhea.
OWCP also received a duty status report (Form CA-17) dated June 25, 2020 from
Dr. Sparks. Dr. Sparks indicated by checking a box marked “Yes” that appellant’s diagnosis was
due to an injury on the job.
In a letter dated June 30, 2020, an employing establishment manager, J.J., controverted
appellant’s claim. She reported that appellant carried mail on June 17, 18, and 19, 2020 and the
high temperature on those days was 72, 81, and 82 respectively. J.J. also related that appellant
claimed he could not tolerate the heat as it was hard on his kidneys; however, appellant had
experienced health issues involving his kidneys for over a year. She related that she had suggested
appellant file a Form CA-2 due to his continued health issues.
In an e-mail dated July 8, 2020, appellant’s supervisor, J.C. stated that he did not believe
that appellant’s injury was due to two or three days of work. He noted that appellant related that
he did not feel well due to working late the previous day and he also called out the following day.
In a development letter dated July 17, 2020, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It requested that he submit a
narrative medical report from his attending physician which provided a medical explanation as to
how the reported work incident caused or aggravated a medical condition. OWCP also provided
appellant a questionnaire for completion. It afforded appellant 30 days to submit the necessary
evidence.
In response, appellant submitted a return to work form dated July 9, 2020 from Dr. Sparks
who indicated that appellant was to remain off work from July 9 through August 9, 2020.
OWCP received several articles regarding heat-related illnesses as well as the weather
report for Louisville, KY for the month of June 2020.

2

In a letter dated July 22, 2020, appellant’s coworker, K.S. related that on June 19, 2020,
appellant noted that he had cramps throughout the night. She told appellant that he should go to
the hospital, appellant thereafter learned that he had suffered a heat-related injury.
Appellant submitted weather records indicating that on June 17, 28, and 19, 2020 the
outdoor temperatures reached 86, 86, and 89 degrees.
In a report dated July 14, 2020, Dr. Sparks noted that appellant had been seen in a hospital
emergency room on June 20, 2020 and had high creatine phosphokinase. Appellant attempted to
return to work, but he developed persistent weakness and muscle pain. Dr. Sparks referred
appellant to a rheumatologist.
On July 28, 2020 Dr. Sparks reported that appellant was initially seen in the emergency
room on June 20, 2020 with exertional rhabdomyolysis and had a creatine phosphokinase greater
than 1400. He related that appellant had persistent muscle cramping when he performed strenuous
activity in the heat. Dr. Sparks indicated that appellant was at an increased risk if he returned to
work.
In a letter dated August 4, 2020, Frances Sparks, a registered nurse, noted that appellant
was seen in Dr. Sparks’ office on June 25, July 14, and July 28, 2020 for a heat-related injury that
followed his June 20, 2020 emergency room visit. She indicated that appellant’s injury was
consistent with exertional heat cramps escalating into exertional rhabdomyolysis. Ms. Sparks
stated that appellant’s other problems were not a factor in his injury as he had no prior heat stressrelated injury or renal impairment.
By decision dated August 21, 2020, OWCP accepted that the June 18, 2020 incident
occurred as alleged, but denied appellant’s claim as the medical evidence of record was insufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment incident.
OWCP received a form report dated August 10, 2020 from Dr. Sparks wherein he indicated
that appellant could return to work.
On September 23, 2020 appellant requested reconsideration and submitted additional
medical evidence.
In a September 19, 2020 report, Dr. Sparks noted that appellant was initially seen in the
emergency room on June 20, 2020 with exertional rhabdomyolysis. He related that appellant was
at an increased risk for a second event if he returned to work, but that appellant needed to be seen
by a rheumatologist to confirm or deny that assumption. Dr. Sparks opined that appellant’s
exertion and subsequent dehydration on the noted days was the etiology of his problem.
By decision dated September 29, 2020, OWCP denied modification of the August 21, 2020
decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
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.
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 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 specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted June 18, 2020 employment incident.

2

Id.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

OWCP received reports dated June 20 and 21 2020 from Dr. Fernandez wherein she noted
appellant’s history of sweating while delivering mail and diagnosed exertional rhabdomyolysis.
However, Dr. Fernandez did not provide a medical opinion explaining the cause of appellant’s
diagnosed conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.9 As such, these reports are insufficient to establish appellant’s claim.
Appellant also submitted several reports from Dr. Sparks. In his report dated June 25,
2020, Dr. Sparks noted appellant’s exertional rhabdomyolysis diagnosis; however, he did not
provide an opinion regarding the cause of appellant’s diagnosed condition. As such, this report is
insufficient to establish appellant’s claim.10
OWCP received a Form CA-17 dated June 25, 2020 from Dr. Sparks who indicated that
appellant was diagnosed with exertional rhabdomyolysis and indicated by checking a box marked
“Yes” that the diagnosis was due to an injury on the job. The Board has held that an opinion on
causal relationship with an affirmative check mark, without more by the way of medical rationale,
is insufficient to establish the claim.11 As such, this report is insufficient to establish appellant’s
claim.
Appellant submitted reports dated July 14, and 28, 2020 from Dr. Sparks in which he noted
appellant’s history of injury and diagnosis, and noted that appellant should be referred to a
rheumatologist. However, he did not provide an opinion regarding the causal relationship. The
Board has held that a medical opinion is of limited probative value if it is conclusory in nature.12
These reports are therefore insufficient to establish causal relationship.
Appellant also submitted a report dated September 19, 2020 from Dr. Sparks in which he
opined that exertion and subsequent dehydration on the noted days was the cause of appellant’s
exertional rhabdomyolysis. While Dr. Sparks provided an opinion on causal relationship, he did
not offer any rationale to explain how the accepted employment incident would have caused
appellant’s diagnosed conditions. The Board has held that a medical opinion should offer a
medically-sound explanation of how the specific employment incident physiologically caused the
diagnosed condition.13
Appellant also submitted a letter dated August 4, 2020 from Ms. Sparks, a registered nurse,
in which she indicated that appellant’s injury was consistent with exertional heat cramps escalating
into exertional rhabdomyolysis. Ms. Sparks also noted that appellant’s other problems were not a
9

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
10

Id.

11

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
12

C.M., Docket No. 19-0360 (issued February 25, 2020).

13
T.W., Docket No. 20-0767 (issued January 13, 2021); see H.A., Docket No. 18-1466 (issued August 23, 2019);
L.R., Docket No. 16-0736 (issued September 2, 2016).

5

factor in his injury as he had no prior heat stress-related injury or renal impairment. Certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as defined under FECA.14 Consequently, Ms. Sparks’ letter will not
suffice for the purposes of establishing entitlement to FECA benefits.15
OWCP also received medical literature in support of appellant’s claim. The Board has
long held, however, that excerpts from publications have little probative value in resolving medical
questions unless a physician establishes the applicability of the general medical principle discussed
in the article to the specific factual situation in the case.16
As there is no reasoned medical evidence explaining how appellant’s accepted employment
factors caused his exertional rhabdomyolysis condition, appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted June 18, 2020 employment incident.

14
See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA).

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); see also M.F.,
Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221 (issued July 15, 2019).
15

16
T.S., Docket No. 18-1518 (issued April 17, 2019); W.C. (R.C.), Docket No. 18-0531 (issued November 1, 2018);
K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne, 55 ECAB 535 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
ARMY CORPS OF ENGINEERS, NORFOLK
DISTRICT, Norfolk, VA, Employer
__________________________________________

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

Docket No. 08-2363
Issued: May 5, 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 August 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 9, 2008 decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this schedule award decision.
ISSUE
The issue is whether appellant has established that he has a greater than 18 percent
bilateral hearing loss.
FACTUAL HISTORY
On January 3, 2008 appellant, a 66-year-old retired1 supervisory engineering technician,
filed an occupational disease claim (Form CA-2) for hearing loss. He attributed his hearing loss
to working around construction equipment and heavy machinery. Appellant first became aware
of his condition and its relationship to his federal employment on June 9, 1995.
1

Appellant retired in July 2004.

Appellant submitted a collection2 of audiograms conducted during his employment.3
The Office referred appellant, together with a statement of accepted facts to
Dr. L. Frederick Lassen, a Board-certified otolaryngologist, for a second opinion. By report
dated April 15, 2006, Dr. Lassen stated that the audiogram reflected testing at 500, 1,000, 2,000
and 3,000 cps levels and showed the following decibel losses: 25, 30, 40 and 45 in the right ear,
and 50, 45, 45 and 45 in the left ear. Furthermore, he opined that appellant’s hearing loss was
due to noise exposure he encountered in his federal civilian employment.
By decision dated June 4, 2008, the Office accepted appellant’s occupational disease
claim for bilateral sensorineural hearing loss and bilateral noise-induced hearing loss.
Furthermore, based upon Dr. Lassen’s report, the district medical adviser, by letter dated
June 5, 2008, concluded that appellant had a bilateral ratable sensorineural hearing loss. The
district medical adviser found that appellant had 15 percent monaural hearing loss in the right ear
and 31.81 percent in the left ear, producing a 17.8 percent binaural hearing loss.
Appellant filed a claim for a schedule award (Form CA-7), dated June 23, 2008. By
decision dated July 9, 2008, the Office awarded appellant a schedule award for 18 percent
bilateral hearing loss.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
2

The record contains data from an audiogram conducted June 24, 2003. This data is contained in a document
which is neither dated nor signed by a physician and lacks any indicia of identification concerning its author. As its
authorship cannot be ascertained, this evidence is of no probative value and will be disregarded. See D.D.,
57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988), (unsigned medical evidence with no adequate
indication that it was completed by a physician is not considered probative medical evidence).
3

A July 24, 1992 audiogram reflected testing at 500, 1,000, 2,000 and 3,000 cycles per second (cps) levels and
showed the following decibel losses: 15, 15, 10 and 15 in the right ear and 25, 20, 20 and 20 in the left ear. An
April 6, 1993 audiogram reflected testing at 500, 1,000, 2,000 and 3,000 cps levels and showed the following
decibel losses: 20, 15, 10 and 20 in the right ear and 25, 25, 15 and 15 in the left ear. A June 1, 1994 audiogram
reflected testing at 500, 1,000, 2,000 and 3,000 cps levels and showed the following decibel losses: 20, 20, 10 and
15 in the right ear and 25, 25, 20 and 15 in the left ear.
Furthermore, appellant submitted a June 9, 1995 audiogram which reflected testing at 500, 1,000, 2,000 and 3,000
cps levels and showed the following decibel losses: 20, 20, 20 and 20 in the right ear and 30, 25, 20 and 15 in the
left ear. A July 24, 1996 audiogram reflected testing at 500, 1,000, 2,000 and 3,000 cps levels and showed the
following decibel losses: 20, 20, 20 and 20 in the right ear and 25, 25, 20 and 20 in the left ear. A May 9, 1997
audiogram reflected testing at 500, 1,000, 2,000 and 3,000 cps levels and showed the following decibel losses: 20,
15, 15 and 15 in the right ear and 25, 20, 20 and 15 in the left ear. A May 3, 1999 audiogram reflected testing at
500, 1,000, 2,000 and 3,000 cps levels and showed the following decibel losses: 20, 20, 20 and 20 in the right ear
and 30, 25, 20 and 20 in the left ear. An August 10, 2000 audiogram reflected testing at 500, 1,000, 2,000 and 3,000
cps levels and showed the following decibel losses: 20, 20, 20 and 20 in the right ear and 30, 25, 25 and 20 in the
left ear. These audiograms were photocopied on top of medical reports signed by Dr. Philip O. Geib, a Boardcertified general surgeon. See note 11, infra.

2

and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001) as the appropriate standard for evaluating schedule losses.5 Effective February 1,
2001, schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).6
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.7 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.8 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.10
ANALYSIS
The Office medical adviser applied the Office’s standardized procedures to the April 15,
2008 audiogram obtained by Dr. Lassen. According to the Office’s standardized procedures,
testing at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed hearing losses in the right
ear of 25, 30, 40 and 45 respectively. These totaled 140 decibels which, when divided by 4,
obtained an average hearing loss of 35 decibels. The average of 35 decibels, when reduced by
25 decibels (the first 25 decibels are discounted as discussed above), equals 10 decibels, which,
when multiplied by the established factor of 1.5 produces a 15 percent hearing loss in the right
ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
hearing losses in the left ear of 50, 45, 45 and 45 respectively. These totaled 185 decibels,
which, when divided by 4, obtains an average hearing loss of 46.25. The average of 46.25
decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above),

4

The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
5

20 C.F.R. § 10.404 (2006).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

7

A.M.A., Guides 250 (5th ed. 2001).

8

Id.

9

Id.

10

Id.

3

equals 21.25 decibels, which, when multiplied by the established factor of 1.5 produces a 31.88
percent hearing loss in the left ear.
The district medical adviser then proceeded to calculate appellant’s binaural hearing loss.
The 15 percent hearing loss for the left ear, when multiplied by 5, yielded a product of 75. The
75 was then added to the 31.88 percent hearing loss for the left ear to obtain a total of 108.88.
The 108.88 was then divided by 6, in order to calculate a binaural hearing loss of 17.813 percent,
rounded to 18 percent.11 Therefore, the evidence of record establishes that appellant has greater
than a four percent binaural hearing loss.
Therefore, the Office properly calculated appellant’s compensation based upon the
medical evidence in the record.
CONCLUSION
The weight of the medical evidence establishes a ratable hearing loss causally related to
noise exposure in federal employment.

11

The Board notes that the Office’s reliance on Dr. Lassen’s data is substantially more favorable to appellant than
relying on the audiograms he submitted. As a general rule, if an audiogram is prepared by an audiologist it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss.
Joshua A. Holmes, 42 ECAB 231, 236 (1990). Dr. Geib did not certify the accuracy of the audiograms appellant
submitted and, consequently, these audiograms are of little probative value.
Regardless, utilizing the formulaic analysis applied above to the data contained in any of the audiograms conducted
between June 9, 1995 and August 10, 2000, reveals a zero percent monaural hearing loss in both ears and zero
percent binaural hearing loss. See note 3, supra. Thus, the Office’s reliance on Dr. Lassen’s medical report
permitted that which appellant’s historical audiograms would have prohibited.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 9, 2008 is affirmed.
Issued: May 5, 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