United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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

Docket No. 17-1344
Issued: March 19, 2018

Case Submitted on the Record

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

JURISDICTION
On June 2, 2017 appellant, through counsel, filed a timely appeal from a March 28, 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish total and
intermittent periods of disability beginning February 5, 2016 due to his December 21, 2015
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.

employment injury; and (2) whether appellant established that his claim should be expanded to
include the additional conditions of lumbar disc herniation with radiculopathy, lumbar
spondylosis, and muscle spasm.
FACTUAL HISTORY
On December 30, 2015 appellant, then a 39-year-old carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on December 21, 2015, he sustained a lumbar strain and
right hip contusion when he slipped and fell in a customer’s driveway while in the performance of
duty. He stopped work on December 21, 2015. OWCP accepted appellant’s claim for a low back
strain and contusion of the right hip. Appellant received continuation of pay (COP) benefits
through February 4, 2016.
Appellant was initially treated by Dr. Katayoon Shahrokh, Board-certified in physical
medicine and rehabilitation, who related in a January 7, 2016 report that he complained of rightsided low back pain and discomfort and occasional right lower extremity pain. Dr. Shahrokh
diagnosed lumbar muscle strain. In a work status report, she indicated that appellant could work
modified duty from January 7 through 21, 2016.
In a January 7, 2016 lumbar spine magnetic resonance imaging (MRI) scan report,
Dr. Geoffrey Sigmund, a Board-certified diagnostic radiologist, noted a 3 millimeter (mm)
asymmetric disc bulge to the right foraminal region at L4-5, with mild-to-moderate narrowing, but
otherwise normal alignment of the lumbar spine.
On January 28, 2016 the employing establishment provided appellant with a modified job
offer. Appellant refused the modified job offer on February 2, 2016 and indicated that the reason
was “per doctor’s instruction.”
In a February 1, 2016 progress note and work status report, Dr. Shahrokh described the
December 21, 2015 employment injury and noted examination findings of tenderness of the right
hip and decreased range of motion and tenderness of the lumbar spine. She diagnosed lumbar
radiculopathy. Dr. Shahrokh noted that appellant was placed off work from February 1
through 15, 2016.
On February 4, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
total disability from February 5 to 19, 2016. On the reverse side of the claim form, the employing
establishment confirmed that he had used COP from December 22, 2015 to February 4, 2016 and
leave without pay (LWOP) from February 5 to 19, 2016. In an attached time analysis form (Form
CA-7a), appellant indicated that he was totally disabled during the claimed period of disability.
The employing establishment indicated that eight hours of work was available for him daily.
Dr. Shahrokh continued to treat appellant. In progress notes and supplemental attending
physician’s reports dated February 10, 12, and 16, 2016, she noted a date of injury of
December 21, 2015. Dr. Shahrokh provided examination findings and reported diagnoses of
lumbar radiculopathy, lumbar disc herniation, lumbar muscle strain, and lumbar disc herniation
with radiculopathy. In a February 16, 2016 report, she requested that OWCP add lumbar
radiculopathy and disc herniation to appellant’s claim. Dr. Shahrokh explained that the herniated

2

disc was compressing a lumbar nerve and causing radiculopathy. She related that the diagnosis
was supported by MRI scan findings of a 3 mm disc herniation and physical examination findings
of asymmetric weakness, impaired sensation, and positive straight leg raise testing. Dr. Shahrokh
noted that appellant was totally disabled from February 15 through 29, 2016. She explained that
the reason for being off work was “incapacitating injury or pain.”
By letter dated February 17, 2016, the employing establishment requested that OWCP deny
appellant’s claim for wage-loss compensation for the period February 5 through 19, 2016. It
explained that he had been placed on work restrictions by his physician after the injury. However,
work was not available within these restrictions until January 28, 2016. A job offer was mailed to
appellant on January 29, 2016, within the physician’s restrictions, but then on February 1, 2016
appellant’s physician related that appellant was totally disabled from work. The employing
establishment noted that work had been available since January 29, 2016 within the restrictions
previously provided by appellant’s physician.
In a February 18, 2016 letter, OWCP noted that Dr. Shahrokh added a new diagnosis of
lumbar radiculopathy. It requested that appellant submit a detailed narrative report with medical
rationale explaining how the diagnosed condition resulted from the December 21, 2015
employment injury.
By letter dated February 22, 2016, OWCP informed appellant that it received his claim for
wage-loss compensation beginning February 5, 2016. It requested additional evidence to establish
that he was unable to work effective February 5, 2016 as a result of his December 21, 2015
employment injury. Appellant was afforded 30 days to submit this evidence.
On February 10, 2016 appellant submitted another claim for wage-loss compensation
(Form CA-7) for the period February 22 to March 4, 2016. On the reverse side of the claim form,
the employing establishment noted that eight hours of work was available. It attached an OWCP
time loss record which indicated that work was available for appellant from February 22 to
March 4, 2016.
OWCP received a neurology consultation report dated March 1, 2016 by Dr. Rollin ChenChi Hu, a Board-certified neurosurgeon, who described the December 21, 2015 employment
injury. Dr. Hu related appellant’s complaints of persistent low back pain and right leg pain and
numbness. Upon physical examination, he reported minimal tenderness to palpation over the
lumbar spine. Dr. Hu noted diminished sensation to light touch over the entire right leg. He
indicated that after reviewing appellant’s lumbar spine MRI scan he found no evidence of
significant degenerative changes or disc herniation, foraminal stenosis, or root impingement.
Dr. Hu related that appellant’s symptoms were also inconsistent with a lumbar radiculopathy as
appellant complained of numbness and weakness of the entire right leg in no particular radicular
distribution. He recommended an electromyography (EMG) study to rule out a peripheral nerve
or plexus issue.
Dr. Shahrokh continued to treat appellant. In attending physician’s reports dated
February 29 and March 1, 2016, she described the December 21, 2015 employment injury and
conducted an examination. Dr. Shahrokh reported diagnoses of lumbar muscle strain, lumbar

3

radiculopathy, and lumbar disc herniation. In work status notes dated from February 29 to
March 8, 2016, she authorized appellant to work modified duty.
Appellant submitted a March 4, 2016 EMG and nerve conduction velocity (NCV) study by
Dr. Radha Peram, a physical medicine and rehabilitation specialist. Dr. Peram noted diagnoses of
chronic low back pain, lumbosacral radiculitis, and paresthesia. He reported a normal study with
no electrodiagnostic evidence for neuropathy or nerve entrapment in the right lower extremity.
By letter dated March 10, 2016, the employing establishment requested that OWCP
disallow appellant’s claim for wage-loss compensation for the period February 22 through
March 4, 2016. It confirmed that there was and continued to be eight hours of work available.
On March 11, 2016 the employing establishment provided appellant with a job offer as a
modified city carrier assistant (CCA). It noted that the work hours were from 8:00 a.m. to 2:00
p.m. with scheduled days off of Saturday and Sunday.
Appellant returned to modified duty on March 18, 2016.
In reports and work status notes dated March 29 and April 19, 2016, Dr. Shahrokh
conducted an examination and noted a diagnosis of chronic low back pain and lumbar muscle
strain. She indicated that appellant could work modified duty for the period March 22 to May 10,
2016 with restrictions.
Appellant filed additional claims for wage-loss compensation (CA-7 forms) for
intermittent periods of disability from March 7 through April 1, 2016.3 In the attached Form CA7a, he indicated that he was totally disabled from March 7 to 17, 2016. He claimed disability
compensation on March 18, 21, 23, and 25, 2016 for “therapy.”4 Appellant also claimed disability
compensation on March 22 and 24, 2016 and from March 28 through April 1, 2016 for “no work
available.” On the reverse side of the claim forms, the employing establishment confirmed that
eight hours of work was available. It provided a time-loss record, which detailed the hours that
appellant worked and the hours he requested LWOP for the months of March and April, 2016.5

3

On April 4, 2016 appellant filed a Form CA-7 claiming wage-loss compensation for the period March 7
to 18, 2016. On April 5, 2016 he filed a Form CA-7 claiming wage-loss compensation for the period March 21
to April 1, 2016.
4

Appellant requested six hours of disability compensation on March 18, 2016 and seven hours of disability
compensation on March 21, 23, and 25, 2016. He requested six hours of disability compensation on March 22, 2016
and eight hours of disability compensation on March 24, 2016 and from March 28 through April 1, 2016.
5

The timesheet also revealed that appellant worked 1.87 hours on March 18; .97 hours on March 21; 1.5 hours on
March 22; .96 hours on March 23; .97 hours on March 24; and 87 hours on March 25, 2016. In time-loss sheets for
April 2016, the employing establishment indicated that work was available on April 1, 2016; appellant worked 5.81
hours on April 4; 5.78 hours on April 5; 5.55 hours on April 6; 4.66 hours on April 7; 8.72 hours on April 11; 4.52
hours on April 12; 6.63 hours on April 15, 2016; 4.90 hours on April 20; 5.03 hours on April 21; 2.02 hours on
April 22; 3.34 hours on April 25; 1.98 hours on April 26; 2.00 hours on April 27; 1.87 hours on April 28; and 1.92
hours on April 29, 2016.

4

By letter dated April 5, 2016, counsel noted his disagreement with OWCP’s February 18,
2016 letter. He alleged that lumbar radiculopathy was a valid, compensable diagnosis.
According to an April 14, 2016 Form CA-110, the employing establishment again
explained that there was no work available for appellant until January 28, 2016. It noted that he
declined a modified duty offer on February 2, 2016, so it provided another modified-duty position
offer on February 29, 2016. The employing establishment related that appellant worked from
March 21 to 25, 2016 and then stopped work again. It confirmed that the limited-duty position
was still available.
Appellant provided various physical therapy treatment notes dated March 16, 18, 20, 21,
23, and 25, and April 8, 2016.
On April 15, 2016 the employing establishment provided appellant with another modified
job offer. It noted work hours of “8:00 a.m. – up to 8 hours” with rotating scheduled days off.
Appellant accepted the modified job offer.
On April 28, 2016 appellant filed CA-7 forms claiming wage-loss compensation for
intermittent periods of partial disability for the period April 4 to 28, 2016. In attached forms
CA-7a, he indicated that the reason for using leave during that period was: “no work available.”6
On the reverse side of the claim form, the employing establishment checked a box marked
“No” indicating that appellant did not return to the predate-of-injury job. It also noted that it was
unable to identify adequate work that was available within his medical restrictions. The employing
establishment provided a time-loss record for April 2016, which indicated that, for the week of
April 4 through 8, 2016, appellant worked a total of 21.78 hours and was owed 16.67 hours. It
further related that, from April 11 through 15, 2016, he worked 19.87 hours and was owed 18.58
hours. The employing establishment noted that, from April 18 through 22, 2016, appellant worked
11.95 hours and was owed 26.50 LWOP hours. It indicated that, from April 25 through 29, 2016,
he worked 11.17 hours and was owed 27.28 LWOP hours.
By letter dated May 3, 2016, counsel indicated that he was submitting medical
documentation to support that appellant’s claim be expanded to include the following conditions:
lumbar disc herniation with radiculopathy, lumbar spondylosis, and muscle spasm.
By decision dated May 12, 2016, OWCP denied appellant’s claim for wage-loss
compensation beginning February 17, 2016. It found that the medical evidence of record failed to
establish that he was disabled from work during the claimed period as a result of his accepted
injury. By separate decision of the same date, OWCP also denied appellant’s request to expand
his claim to include lumbar disc herniation with radiculopathy, lumbar spondylosis, and muscle
spasm. It found that the medical evidence of record was insufficient to establish any additional
conditions causally related to the December 21, 2015 employment injury.

6

Appellant claimed eight hours on April 13, 14,18, and 19, 2016, six hours on April 7, 15, 22, 25, 26, 27, and 28,
2016, five hours on April 12, 2016, four hours on April 4, 5, 7, 8, and 11, 2016, and three hours on April 6
and 21, 2016.

5

Appellant submitted additional CA-7 forms requesting wage-loss compensation for
intermittent disability during the period May 2 to June 24, 2016. In the CA-7a forms he indicated
that he was partially disabled on May 3, 5, 11, 16, 18, 20, 24, 25, 27, 30, and 31, 2016 and June 6,
7, 8, 9, and 10, 2016 because there was “no work available.”7 Appellant also claimed disability
on May 2, 4, 6, 9, 10 11, 13, 17, 19, 23, 26 and 31, 2016 and June 21, 2016 related the reason was
for “therapy” or the “doctor.” On the reverse side of the Form CA-7a, the employing establishment
indicated that work was available and referred to the job offer on file. It also provided a time-loss
logging sheet for May and June 2016.8
In May 10 and 31, 2016 attending physician’s report, Dr. Shahrokh reviewed appellant’s
history and conducted an examination. She diagnosed chronic low back pain and lumbar muscle
strain. Dr. Shahrokh related that appellant could work modified duty from May 10 through
June 21, 2016 with restrictions of standing and walking no more than 45 cumulative minutes,
bending at the wait, squatting, kneeling, and knee bending no more than 15 cumulative minutes,
and lifting, carrying, pushing, or pulling up to 15 pounds.
On May 18, 2016 the employing establishment provided appellant with a modified job
offer. It noted that the work hours were “8:00 [a.m.] – up to 6 hours” with rotating scheduled days
off. Appellant accepted the modified job offer.
OWCP received appellant’s request, through counsel, for a telephone hearing, held before
an OWCP hearing representative on May 23, 2016. Appellant submitted physical therapy notes
dated May 9, 11, 13, 17, 19, 23, and 26, 2016.
On June 7, 2016 the employing establishment provided appellant with another modified
job offer. It noted that the work hours were from “8:00 a.m. – up to 8 hours” with rotating
scheduled days off. Appellant accepted the modified job offer.
Dr. Shahrokh provided a June 21, 2016 report and noted that appellant’s symptoms had
improved from the previous visit. She related that he wanted to try to work full duty. Dr. Shahrokh
conducted an examination and diagnosed lumbar muscle strain. She released appellant to work
full duty.
By decision dated August 25, 2016, OWCP denied appellant’s claim for wage-loss
compensation benefits beginning May 16, 2016. It found that the medical evidence of record
failed to establish that he was disabled from work or entitled to wage-loss compensation during
7

Appellant claimed eight hours of LWOP on May 5, and June 8 and 9, 2016; approximately six hours of LWOP
on May 3, 2016; four hours on May 11, 2016; and two hours of LWOP on May 16, 18, 20, 24, 25, 27, and 30, and
June 6, 7, and 10, 2016. He also requested eight hours of LWOP on May 4, 6, 10 11, 17, and 31, 2016; six hours of
LWOP on May 2, 9, and 13, and June 21, 2016, and four hours of LWOP on May 19, 23, and 26, 2016 for “doctor”
or “therapy.”
8

In a time-loss sheet for the month of May 2016, the employing establishment noted that appellant requested
approximately 30 minutes of LWOP on May 28, 2016. A time-loss sheet for the month of June 2016, demonstrated
that he used approximately 30 minutes of LWOP on June 21 and 24, 2016; approximately two hours of LWOP on
June 4, 6, 7, 10, 14, 18, 20, 23, and 26; approximately four hours on June 19 and 21, 2016; and approximately seven
hours on June 9 and 16, 2016.

6

the claimed period as a result of his work injury. On September 6, 2016 OWCP received
appellant’s request, through counsel, for a telephone hearing before an OWCP hearing
representative.
In an October 28, 2016 letter, appellant noted a date of injury of December 21, 2015. He
related that he received his job offer on January 31, 2016. Appellant explained that he took a copy
of the job offer to his physician, but she informed him that he was not ready to go back to work
yet. He asserted that he had no choice, but to follow his physician’s instructions.
Appellant indicated in a December 8, 2016 letter that he had asked his union representative
to obtain proof of no work available and was given a memorandum of a request for a copy of
appellant’s leave slip. He requested that OWCP let him know if more evidence was needed.
Appellant submitted a memorandum dated November 15, 2016 from his union representative to
his postmaster requesting a copy of appellant’s leave slips for various dates from March 7 to
June 10, 2016. He also submitted various employee earnings statements for January through
June 2016 and resubmitted CA-7a forms, which covered the period March 21 to June 24, 2016.
A hearing was held on January 11, 2017.9 Counsel alleged that, although OWCP denied
appellant’s request to expand his claim because of a negative EMG/NCV study, other medical
records showed a clinical presentation of radicular complaints. He requested that, on the issue of
additional claims, OWCP send the claim back for additional medical review. Regarding the issue
of wage-loss compensation benefits, appellant explained that, following his December 21, 2015
employment injury, he missed about six months of work. He related that he received COP for the
first 45 days and began to claim compensation for disability beginning February 5, 2016.
Appellant indicated that his physician took him off work from February 5 to 29, 2016. He reported
that he later received a job offer from the employing establishment on March 17, 2016 and returned
to light duty on March 18, 2016. Appellant explained that some days he worked one and two
hours, or three and four hours because the employing establishment did not have eight hours of
work available for him. He indicated that he returned to full duty in June 2016.
On February 10, 2017 OWCP received the employing establishment’s response to a
transcript of the January 11, 2017 hearing. It related that it mailed appellant a modified job offer
on January 29, 2016. The employing establishment noted that he went to his treating physician on
February 1, 2016 and was placed on total disability. It reported that on March 10, 2016 it received
two medical documents dated February 29 and March 3, 2016, which placed appellant on modified
duty, so the employing establishment prepared a modified job offer dated March 11, 2016. The
employing establishment related that he accepted the job offer on March 17, 2016. It explained
that this job had been available since January 29, 2016. The employing establishment submitted
appellant’s previous modified job offers and medical reports.
In a March 13, 2017 statement, appellant explained that, when he showed his treating
physician a copy of the January 28, 2016 job offer, his physician decided to place him on total
The hearing representative indicated that the hearing was to address OWCP’s decisions dated May 12 and
August 25, 2016, which denied appellant’s claim for wage-loss compensation benefits beginning February 17, 2016
and his request to expand his claim to include a lumbar herniated disc with radiculopathy, lumbar spondylosis, and
muscle spasms.
9

7

disability so as not to jeopardize his condition. He alleged that he later accepted the March 11,
2016 modified job offer, but was working less than eight hours. Appellant further alleged that he
submitted all medical proof and work status reports to his supervisor as instructed, but due to
misinformation and improper filing by his employing establishment, his COP and wage-loss
compensation benefits were being delayed by OWCP. He noted that his union had filed a
grievance and that he had attached a copy of the grievance.
By decision dated March 28, 2017, an OWCP hearing representative affirmed the
May 12 and August 25, 2016 OWCP decisions. She found that the medical evidence of record
was insufficient to establish that appellant was disabled from work beginning February 5, 2016 as
a result of the December 21, 2015 employment injury. The hearing representative further
determined that there was no medical evidence of record sufficient to establish an additional
lumbar condition causally related to the December 21, 2015 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA10 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.11 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury.12
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.13 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work.14 When the
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings or
disability being shown, the physician has not presented a medical opinion, supported by medical
rationale, on the issue of disability or a basis for payment of compensation.15
When an employee, who is disabled from the job he or she held when injured due to
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that, light duty can be performed, the employee has the burden of proof to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this

10

Supra note 2.

11

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

12

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

13

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

14

Dean E. Pierce, 40 ECAB 1249 (1989).

15

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.16
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.17
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbar strain and right hip contusion as a result
of the December 21, 2015 employment injury. Appellant stopped work and returned to modified
duty on March 18, 2016. He filed claims for wage-loss compensation for total disability for the
period February 5 to March 17, 2016 and for intermittent periods of partial disability beginning
March 18, 2016, including dates he did not work due to medical appointments or because work
was unavailable. By decision dated March 28, 2017, an OWCP hearing representative affirmed
May 12 and August 25, 2016 decisions denying appellant’s claim for wage-loss compensation
beginning February 5, 2016.
The Board finds that appellant has failed to establish total disability for the period
February 5 to March 17, 2016 due to his December 21, 2015 employment injury.
During appellant’s alleged period of total disability, he received medical treatment from
Dr. Shahrokh. In reports and work status notes dated February 1 to March 1, 2016, Dr. Shahrokh
accurately described the December 21, 2015 employment injury. She reviewed appellant’s history
and provided findings on examination. Dr. Shahrokh diagnosed lumbar muscle strain, lumbar
radiculopathy, and lumbar disc herniation. She noted that appellant was totally disabled from
February 1 through 29, 2016 due to “incapacitating injury or pain.” The Board has found,
however, that when a physician’s statements regarding an employee’s ability to work consist only
of repetition of the employee’s complaints that he or she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the issue
of disability.18 Dr. Shahrokh did not discuss any objective findings to support appellant’s inability
to work, nor did she explain why he was unable to work as a result of his accepted lumbar and
right hip injury.19
In a March 3, 2016 work status note, Dr. Shahrokh placed appellant on modified duty
beginning February 29, 2016. She continued to provide various work status notes dated March 3
and 8, 2016, which released appellant to modified duty beginning February 29, 2016.

16

C.G., Docket No. 16-1503 (issued May 17, 2017).

17

Amelia S. Jefferson, supra note 13.

18

P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

19

See M.M., Docket No. 16-0541 (issued April 27, 2010).

9

The Board finds that Dr. Shahrokh’s additional reports also fail to establish that he was
totally disabled from work from February 5 to March 17, 2016. On the contrary, Dr. Shahrokh
released appellant to work modified duty beginning February 29, 2016.
The Board further finds that appellant has failed to establish intermittent periods of
disability for the period March 18 to April 1, 2016, as he has not submitted evidence sufficient to
establish that the employing establishment was unable to accommodate his work restrictions
during that claimed period. The record reflects that appellant accepted a modified job offer as a
modified CCA. On the reverse side of the CA-7 claim forms, which covered the periods March 18
to April 1, 2016, the employing establishment indicated that eight hours of work had been made
available to him. As such, appellant has failed to establish that he was entitled to wage-loss
compensation for intermittent periods of disability from March 18 to April 1, 2016 because there
was no work available for him within his medical restrictions.
The Board also finds, however, that the case is not in posture for a decision regarding
appellant’s wage-loss compensation for intermittent disability for the period April 4 to 29, 2016.
On April 28, 2016 appellant filed CA-7 forms claiming total disability for the period
April 4 to 29, 2016 because no work was available. On the reverse side of the CA-7 forms covering
the period April 4 to 29, 2016, the employing establishment indicated that it was “unable to identify
adequate work that is available within medical restrictions.” It provided a time-loss document for
the month of April 2016 and detailed how many LWOP hours that appellant was owed. The Board
finds, therefore, that the evidence of record establishes that the employing establishment was
unable to accommodate appellant’s work restrictions from April 4 to 29, 2016. OWCP regulations
provide that an employee is not entitled to compensation for any wage loss to the extent that
evidence establishes that an employee had medical restrictions in place, that light duty within those
work restrictions was available, and that the employee was previously notified in writing that such
duty was available.20 In this case, the evidence of record has demonstrated that appellant was
authorized to work with restrictions, but the employing establishment did not have adequate work
within his medical restrictions. OWCP continued to deny his wage-loss compensation claim for
the period April 4 to 29, 2016 in light of the fact that the employing establishment indicated on the
CA-7 forms that it did not have work available within appellant’s work restrictions. Accordingly,
the Board must remand the case for OWCP to issue appropriate wage-loss compensation for the
period April 4 to 29, 2016.
The Board further finds that, for the remaining claimed periods of disability after April 29,
2016, the evidence of record lacks sufficient information to determine whether there was
appropriate modified-duty work available for appellant such that he was not entitled to intermittent
periods of partial disability. Appellant claimed approximately eight hours of wage-loss
compensation on May 5 and June 8 and 9, 2016, six hours of LWOP on May 3, 2016, four hours
on May 11, 2016, and two hours of LWOP on May 16, 18, 20, 24, 25, 27, and 30 and June 6,
7, and 10, 2016 because no work was available. On the reverse side of the CA-7 claim forms,
which covered the periods after April 29, 2016, the employing establishment indicated that work
was available. It noted that the job offer was on file. The evidence of record reflects that appellant
20

20 C.F.R. § 10.500(a).

10

accepted an April 25, 2016 modified job offer, which noted work hours from “8:00 a.m. – up to
2 hours.” He also accepted a modified job offer on May 18, 2016, which noted work hours of
“8:00 a.m. – up to 6 hours” with rotating scheduled days off. On June 7, 2016 the employing
establishment provided appellant with another modified job offer, which reported work hours of
“8:00 a.m. – up to 8 hours.”
Although the employing establishment asserted on the CA-7 forms that there was work
available, the evidence of record also demonstrates that a modified job offer for up to eight hours
was not available until June 7, 2016. The current record before the Board does not clearly establish
that the employing establishment was able to accommodate appellant’s work restrictions full time,
such that his claim for intermittent periods of partial wage-loss compensation should be denied.21
Appellant has asserted that the employing establishment was not always available to provide eight
hours of modified duty to him. The modified job offers dated April 25 and May 18, 2016 appear
to support his assertion as they demonstrate that his modified duty was available for up to two or
six hours. On remand, OWCP must develop the case and make factual findings on the status of
appellant’s employment at the time he requested wage-loss compensation for partial disability
from May 2 to June 6, 2016 because there was no work available within his work restrictions.
In addition, the Board also finds that the case is not in posture for decision regarding
whether appellant is entitled to compensation for medical treatment on the following
dates: February 10, 12, 16, and 29, 2016; March 1, 3, 4, 7, 8, 16, 18, 21, 23, 25, and 29, 2016;
April 8 and 19, 2016; May 9, 10, 11, 13, 17, 19, 23, 26, and 31, 2016; and June 21, 2016. The
record contains evidence that appellant was examined by Dr. Shahrokh or underwent physical
therapy treatments on these dates. OWCP’s procedures provide that wages lost for compensable
medical examination or treatment may be reimbursed.22 It notes that a claimant who has returned
to work following an accepted injury or illness may need to undergo examination or treatment and
such employee may be paid compensation for wage loss while obtaining medical services and for
a reasonable time spent traveling to and from the medical provider’s location.23 As a rule, no more
than four hours of compensation or COP should be allowed for routine medical appointments.
Longer periods of time may be allowed when required by the nature of the medical procedure
and/or the need to travel a substantial distance to obtain the medical care.24
Accordingly, the case will also be remanded for consideration of payment of up to four
hours of wage-loss compensation for each of these medical appointments and travel time.

21

See J.G., Docket No. 17-0910 (issued August 28, 2017) (the Board remanded the case for OWCP to determine
whether there was modified work available for appellant on November 25, 2016 when the employing establishment
initially noted that he only worked 15.54 hours for the period September 17 through November 30, 2016, but later
claimed that there was always work available for the claimant); see also J.T., Docket No. 15-1133 (issued
December 21, 2015).
22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
23

Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

24

Supra note 22 at Chapter 2.901.19(c) (February 2013).

11

LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.25 To establish causal relationship between the condition
as well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting
such causal relationship.26 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.27 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.28
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary injury,
the rules that come into play are essentially based upon the concepts of direct and natural results
and of the claimant’s own conduct as an independent intervening cause. The basic rule is that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.29
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish the additional
conditions of lumbar disc herniation with radiculopathy, lumbar spondylosis, and muscle spasm
causally related to the accepted December 21, 2015 employment injury.
OWCP accepted that appellant sustained a low back strain and contusion of the right hip
as a result of the December 21, 2015 employment injury. In a February 16, 2016 report,
Dr. Shahrokh reviewed his history and provided physical examination findings. She diagnosed
lumbar radiculopathy, lumbar disc herniation, and lumbar disc herniation with radiculopathy and
requested that OWCP expand the acceptance of his claim to include those conditions.
Dr. Shahrokh explained that the herniated disc was compressing a lumbar nerve and causing
radiculopathy. She related that the diagnosis was supported by MRI scan findings of a 3 mm disc
herniation and physical examination findings of asymmetric weakness, impaired sensation, and
positive straight leg raise testing.

25

Jaja K. Asaramo, 55 ECAB 200 (2004).

26

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

27

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

28

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

29

Larson, The Law of Workers’ Compensation § 1300; K.S., Docket No. 16-0404 (issued April 11, 2016).

12

Although Dr. Shahrokh opined that appellant’s claim should be expanded to include
lumbar disc herniation and radiculopathy, she did not provide sufficient medical rationale
explaining how the accepted December 21, 2015 employment injury caused, aggravated, or
contributed to his lumbar disc herniation and radiculopathy.30 The Board has found that medical
evidence is of limited probative value if it contains a conclusion regarding causal relationship, but
does not offer any rationalized medical explanation on the issue of causal relationship.31
Accordingly, Dr. Shahrokh’s report is insufficient to establish that appellant sustained lumbar disc
herniation and radiculopathy as a result of his December 21, 2015 employment injury.
The Board finds that there is no medical evidence in the record to establish that appellant
sustained lumbar disc herniation and radiculopathy as a consequence of his accepted December 21,
2015 employment injury. On the contrary, the evidence of record contains a March 1, 2016 report
by Dr. Hu, who indicated that diagnostic testing did not show any evidence of significant
degenerative changes or disc herniation. He also reported that appellant’s symptoms were not
consistent with lumbar radiculopathy. Accordingly, the Board finds that Dr. Hu’s report fails to
establish that appellant sustained any consequential lumbar disc herniation or radiculopathy as a
result of the accepted December 21, 2015 employment injury.
The Board finds that appellant has failed to meet his burden of proof to expand the accepted
conditions of his claim to include lumbar disc herniation with radiculopathy, lumbar spondylosis,
and muscle spasm. The mere fact that a condition manifests itself or is worsened during an
employment period does not raise an inference of causal relationship between the two. Such a
relationship must be shown by rationalized medical evidence of a causal relation based upon a
specific and accurate history of employment conditions which are alleged to have caused or
exacerbated a disabling condition.32 The Board finds that appellant did not meet his burden of
proof to expand the accepted conditions of his claim.
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 that he was
totally disabled for the period February 5 to March 17, 2016 and partially disabled on intermittent
dates for the period March 17 to April 1, 2016 as a result of his accepted December 21, 2015
employment injury. The Board also finds that this case is not in posture for decision regarding
whether he was entitled to compensation for partial disability on intermittent dates beginning
April 24, 2016 because no work was available within his restrictions and regarding his claimed
reimbursement for medical appointments on specific dates. The Board finds that appellant has not

30

K.W., Docket No. 10-0098 (issued September 10, 2010).

31

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

32

Patricia J. Bolleter, 40 ECAB 373 (1988).

13

meet his burden of proof to expand his claim to include the additional conditions of lumbar disc
herniation with radiculopathy, lumbar spondylosis, and muscle spasm.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further development consistent with this decision of the Board.
Issued: March 19, 2018
Washington, DC

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

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0168
Issued: December 1, 2021

Case Submitted on the Record

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

On November 8, 2021 appellant filed an appeal from an April 9, 2020 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0168.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the April 9, 2020 decision was October 6, 2020. As appellant did
not file an application for review with the Board until November 8, 2021, more than 180 days after
the April 9, 2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0168 is
untimely filed. The Board is without jurisdiction to review the appeal.

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

On appeal appellant requests that the 180-day time limit for filing an appeal be extended
“due to COVID.” Pursuant to the Board’s Rules of Procedure, “The Board maintains discretion
to extend the time period for filing an appeal if an applicant demonstrates compelling
circumstances. Compelling circumstances means circumstances beyond the Appellant’s control
that prevent the timely filing of an appeal and does not include any delay caused by the failure of
an individual to exercise due diligence in submitting a notice of appeal.”3 Appellant only generally
asserted that the COVID-19 pandemic was a complicating factor that prevented the timely filing
of the appeal. He has not submitted evidence or argument sufficient to establish the inability to
file a timely appeal. For this reason, the Board finds that this argument is insufficient to establish
compelling circumstances as contemplated by the Board’s implementing regulation. 4 Therefore,
the appeal will be dismissed.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”5
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0168 is dismissed.
Issued: December 1, 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
3

Id.

4

Id.; see also L.M., Docket No. 21-1371 (issued October 26, 2021); S.S. Docket No. 10-1135 (issued
June 23, 2010).
5

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Reynoldsburg, OH, Employer
__________________________________________

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

Docket No. 10-1853
Issued: May 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from a June 8, 2010 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 13, 2009 appellant, then a 48-year-old city carrier, filed an occupational
disease claim alleging that repetitively casing, carrying and delivering mail as well as driving
and lifting heavy objects, aggravated his arthritis, bursitis and pinched nerves in the right arm
and shoulder. He first became aware of his condition on December 15, 2008, adding that he had
1

5 U.S.C. § 8101 et seq.

been treated for arthritis and bursitis for several years and underwent a cubital tunnel release on
July 6, 2009. Appellant’s supervisor noted that appellant was last exposed to employment
factors on July 1, 2009, that he stopped work and had not returned.
The Office informed appellant on September 4, 2009 that additional evidence was needed
to establish his claim. It gave him 30 days to submit a medical report detailing symptoms,
history of injury, examination findings, diagnosis and course of treatment and offering a
physician’s reasoned opinion explaining the cause of his present condition.
A September 13, 2009 report from Dr. Shalva Kakabadze, a Board-certified family
practitioner, pointed out that appellant was diagnosed with progressive Crohn’s disease and
multifocal degenerative joint disease and osteoarthritis. He remarked, “Although not considered
to be directly work related, both disorders are frequently and significantly aggravated by physical
stressors associated with [appellant’s] employment.”
In a September 24, 2009 statement, appellant specified that he performed the following
tasks on a daily basis: casing letters, flats, magazines, catalogs and parcels weighing up to 70
pounds for one to two hours; bundling and loading mail into trays and hampers for 30 minutes;
driving, delivering and picking up mail for three to five hours;2 and unloading collected and
undelivered mail. He asserted that these repetitive activities imposed stress on his arms since
2000, which later escalated to sharp hand and elbow pain. Regarding the cause of his Crohn’s
disease flare-ups, appellant mentioned that he felt pressured by the employing establishment to
carry out his job duties within strict time restraints notwithstanding his right cubital tunnel
release surgery.
In a November 10, 2009 decision, the Office denied the claim, finding the medical
evidence insufficient to establish that work factors caused or aggravated a diagnosed condition.
Appellant provided additional medical records. A January 3, 2002 radiological report
from Dr. Bruce J. Thaler, a Board-certified diagnostic radiologist, found no evidence of right
elbow fracture, dislocation, arthritis or joint effusion. The medical evidence included records
from 2007 pertaining to his abdominal symptoms and Crohn’s disease. An October 20, 2009
note from Dr. Albert Timperman, a Board-certified neurosurgeon, excused appellant from work.
In a January 14, 2010 state workers’ compensation medical form signed by
Dr. Kakabadze, appellant presented joint pain, particularly in the shoulders and flare-ups of
Crohn’s disease. On examination, Dr. Kakabadze observed reduced range of motion (ROM) in
the shoulders and cervical spine. He diagnosed progressive, degenerative joint and muscle
tendon changes, stress and aggravated Crohn’s disease sustained “in the line of duty.”
Dr. Kakabadze listed December 15, 2008 as the date of injury and advised that appellant would
be disabled beginning January 21 to May 5, 2009.3 Work status reports dated February 5 and 24,
2

Appellant stated that he carried a mailbag weighing up to 25 pounds using his right shoulder on “park and loop”
routes for at least one hour each workday.
3

Dr. Kakabadze later indicated in a February 15, 2010 note that appellant was on unpaid leave for the period
February 15 to March 31, 2010.

2

2010 from Drs. Kakabadze and Raymond K. Wurapa, a Board-certified orthopedic surgeon,
released appellant to limited duty on February 5 and 26, 2010, respectively.
Appellant requested a telephonic hearing, which was held on March 19, 2010. At the
hearing, he testified that his physical symptoms worsened on December 15, 2008, when he had
severe hand pain and a pinched elbow nerve. Appellant underwent cubital tunnel release and
obtained some relief, but thereafter continued to experience pain and numbness and was unable
to bear weight on his shoulders. He clarified that Dr. Kakabadze’s September 13, 2009 opinion
that his condition was aggravated by employment-related “physical stressors” pertained to both
the physical stress caused performing repetitive job activities and the mental stress caused by
workplace mistreatment.4 Appellant remained on limited duty. After the hearing, no further
evidence was received by the Office.
On June 8, 2010 the Office hearing representative affirmed the November 10, 2009
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act5 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disabilities and/or specific conditions for which compensation is claimed are
causally related to the employment injury.6 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.8 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.9
4

The Office hearing representative noted that appellant did not initially allege in his claim that emotional stress
aggravated his Crohn’s disease. He advised appellant that, if he wished to claim that job stress aggravated his
Crohn’s disease, he should file a separate occupational disease claim. Appellant indicated that he currently wished
to pursue only his claim for physical injury.
5

5 U.S.C. §§ 8101-8193.

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

Victor J. Woodhams, 41 ECAB 345 (1989).

8

See S.P., 59 ECAB 184, 188 (2007).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); R.R., Docket No. 08-2010 (issued April 3, 2009).

3

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
The evidence supports that appellant performed repetitive work on a daily basis at the
employing establishment, including casing, bundling, loading, delivering and collecting mail.
Medical reports indicate that he was diagnosed as having degenerative joint and muscle tendon
changes. However, appellant did not furnish sufficient evidence demonstrating that his condition
was caused or aggravated by the described employment factors.
In a January 14, 2010 state workers’ compensation medical form, Dr. Kakabadze
examined appellant’s shoulders and observed restricted ROM. He diagnosed degenerative joint
and muscle tendon changes and aggravated Crohn’s disease sustained “in the line of duty” on
December 15, 2008.11 Dr. Kakabadze’s earlier September 13, 2009 report assessed degenerative
joint disease, osteoarthritis and progressive Crohn’s disease, specifying that they were
“frequently and significantly aggravated by physical stressors” connected with appellant’s work.
These reports are of limited probative value as they provide no medical reasoning explaining
how appellant’s federal employment caused or contributed to the claimed right arm and shoulder
conditions.12 Dr. Kakabadze did not discuss the specific work factors described by appellant to
have caused or contributed to his condition13 or how particular work factors would cause or
aggravate a diagnosed right arm or shoulder condition. His diagnosis of degenerative joint and
muscle tendon changes implicated both of appellant’s shoulders whereas appellant claimed that
he injured his right arm and shoulder.14
The remaining physicians’ records either address conditions other than the claimed right
arm and shoulder conditions or they provide no opinion on how particular work factors caused or

10

I.J., 59 ECAB 408 (2008); Woodhams, supra note 7.

11

As appellant indicated at his March 19, 2010 hearing that he did not wish to pursue a claim for Crohn’s disease
due to emotional stress, this decision only addresses whether appellant’s claimed right arm and shoulder conditions
were caused or aggravated by his work duties. See supra note 4.
12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (medical opinion not fortified by medical rationale is of
little probative value).
13

See John W. Montoya, 54 ECAB 306, 309 (2003).

14

See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an
incomplete or inaccurate history are of diminished probative value).

4

aggravated diagnosed condition.15 Appellant also submitted hospital treatment records from
nurses. However, these lack probative medical value as nurses are not physicians as defined by
the Act.16
Appellant contends on appeal that the Office hearing representative’s decision was
contrary to fact and law. As noted the medical evidence did not sufficiently explain how
repetitive work activities caused or aggravated a right arm and shoulder condition.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 4, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

15

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
16

5 U.S.C. § 8101(2); Humphrey, supra note 9. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician).

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Carlos, CA, Employer
_________________________________________

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

Docket No. 12-100
Issued: July 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 24, 2011 appellant, through her attorney, filed a timely appeal from the
June 15, 2011 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.2
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss and medical
benefits effective June 15, 2011.
FACTUAL HISTORY
OWCP accepted that on or before July 11, 2007 appellant, then a 36-year-old distribution
clerk, sustained injuries to her left arm, forearm and fingers while working with bundles of mail.
She was initially placed on restrictions and a six-hour workday, which were later decreased to
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP issued a decision on September 21, 2011 denying a claim for a recurrence of
disability. Appellant’s representative has not appealed this decision.

four hours a day. Appellant gradually increased her work hours to full time with restrictions in
June 2009. OWCP accepted the claim for left shoulder strain, left cervical radiculitis, cervical
strain and paid compensation benefits.
In an August 9, 2010 report, Dr. Elaine Date, a Board-certified internist and treating
physician, prescribed a restriction of no lifting, pushing or pulling over 10 pounds. She advised
that appellant should not work more than four hours a day. Dr. Date continued to treat appellant.
In a September 20, 2010 report, she examined appellant and noted significant left-sided neck
pain radiating to the left arm, with neck muscle spasms and numbness and tingling in the left
arm. Dr. Date advised that the neck was 20 percent worse with moderate left arm pain. She
explained that the neck was “somewhat improved but the left hand and arm is worse.” Dr. Date
recommended acupuncture and that appellant continue on her same modified duty for four hours
per day and no casing. She continued to treat appellant.
On September 30, 2010 OWCP referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Aubrey Schwartz, a
Board-certified orthopedic surgeon.
In a report dated October 22, 2010, Dr. Swartz noted appellant’s history and examined
her. Examination revealed minimal decreased strength in the left shoulder, normal range of
motion, no neurological findings and no atrophy in the upper extremities. Dr. Swartz opined that
there was a discrepancy between appellant’s subjective complaints and her objective
examination findings.
He noted that appellant’s primary problem appeared to be
cervicothoracic; however, her pain drawing revealed significant findings over the left shoulder.
Dr. Swartz diagnosed degenerative disc disease at C4-5 and C5-6 and advised that he could not
provide an opinion on causal relationship, pertaining to the July 11, 2007 traumatic injury until
electrodiagnostic studies were taken. OWCP referred appellant for such testing.
In a December 28, 2010 report, Dr. Swartz noted that an electromyogram (EMG) and
nerve conduction study (NCS) from November 30, 2010 showed moderate left carpal tunnel
syndrome. He indicated that the findings corresponded with appellant’s subjective complaints
and diagnosed carpal tunnel syndrome, moderately severe in the left wrist and hand, cervical
spine disc protrusion at C4-5 and left shoulder tendinitis. Dr. Swartz explained that her cervical
spine strain aggravated her preexisting discogenic disease in her cervical spine and the tendinitis
appeared to be secondary to a strain and appeared to be related by direct cause to the
July 11, 2007 injury. He opined that the carpal tunnel syndrome was reasonably related to her
claim. Dr. Swartz explained that it was assumed by appellant’s treating physicians that the pain
and numbness in the left wrist and hand were represented by cervical radiculopathy. However,
he explained that the electrodiagnostic studies revealed that the symptoms were actually carpal
tunnel syndrome. Dr. Swartz opined that appellant had three problems. He advised that they
included her neck pain, left shoulder pain and pain and numbness in the left arm, wrist and hand,
which were all related to her claim. Dr. Swartz indicated that he was awaiting results of a
magnetic resonance imaging (MRI) scan and would provide a supplemental report regarding the
relationship between the left shoulder condition and her work injury. He opined that appellant’s
prognosis was fair for her left hand carpal tunnel syndrome and recommended carpal tunnel
release surgery. Dr. Swartz explained that acupuncture would not be of any benefit for her
advanced carpal tunnel syndrome. He noted that appellant stated that she was working for eight

2

hours a day until September 2010. Dr. Swartz advised that she worked at a passport desk,
answered phones and processed reports; however, she could no longer do casing or lift over 15
pounds. He noted that these dates of disability were appropriate and explained that appellant’s
current problem pertained to her carpal tunnel syndrome in the left wrist and hand which was
work related. Dr. Swartz also noted that her complaints of pain in the neck and left shoulder as
well as numbness and pain in the left arm, wrist and hand were residuals of her injury. He
indicated that appellant had not reached maximum medical improvement as she needed surgery
for her carpal tunnel syndrome. Dr. Swartz provided work restrictions for an eight-hour workday
to include a 15-pound pushing, pulling and lifting restriction.
In a December 16, 2010 report, Dr. Date noted the EMG findings suggestive of moderate
left carpal tunnel syndrome. She advised that appellant continued to have increased tingling and
pain in the left upper extremities from the neck, with pain about a 6/10. Dr. Date noted that
appellant was working modified duty for six hours a day. She indicated that appellant had a
history of cervical disc protrusion, left C5 radiculopathy with flare up since July. Dr. Date
recommended acupuncture and physical therapy for the carpal tunnel syndrome and left cervical
radicular symptoms. She noted appellant’s work restrictions and prescribed a resting splint.
In a January 30, 2011 supplemental report, Dr. Swartz noted that a left shoulder MRI
scan was relatively unremarkable and was of no real clinical significance. Regarding continued
work-related residuals, he opined that appellant made a complete recovery from the injuries to
the cervical spine and left shoulder. Dr. Swartz advised that there was no tenderness in her left
shoulder when he examined her on October 22, 2010, and her left shoulder range of motion was
good and functional. He noted that there was no atrophy in the left arm. Regarding the cervical
spine, Dr. Swartz indicated there was mild tenderness but explained that it was not problematic
condition, as appellant had normal strength in her upper extremities. He opined that she had
made a complete recovery from injuries of the cervical spine and left shoulder. Dr. Swartz
indicated that any symptoms that appellant had at the present time were based upon degenerative
changes on the imaging studies, including the degenerative disease in the cervical spine and the
chronic degenerative changes in the rotator cuff/supraspinatus.
By letter dated February 17, 2011, OWCP requested clarification from Dr. Swartz with
regards to appellant’s left carpal tunnel syndrome and the aggravation of cervical degenerative
disc disease and its duration. In a March 28, 2011 report, Dr. Swartz opined that the aggravation
of cervical degenerative disease was temporary. He noted that there were degenerative changes
on the MRI scan of the cervical spine that would unlikely have been affected by the episode of
July 11, 2007 in which she was handling bundles of mail. Dr. Swartz noted that this was an
injury that would produce a temporary flare up of pain or symptoms but would not alter the
degenerative changes in the cervical spine. He advised that appellant had a broad-based disc
bulge at C4-5 and C5-6 and the height was well maintained and not considered significant or
affected by the present claim as there was no significant central canal stenosis, which was a
relatively unremarkable finding, as were the mild disc bulges. Dr. Swartz explained that there
was no evidence of radiculopathy and no nerve root injury. Regarding her carpal tunnel
syndrome, he opined that the mechanism of injury described by appellant affected the median
nerve resulting in carpal tunnel syndrome in her left upper extremity, which continued to be
problematic.

3

On May 3, 2011 OWCP expanded appellant’s claim to include left carpal tunnel
syndrome and temporary aggravation of cervical degenerative disc disease.
On May 3, 2011 OWCP issued a notice of proposed termination of compensation. It
proposed to terminate appellant’s compensation for wage-loss and medical benefits on the basis
that the report of Dr. Swartz established that she no longer suffered residuals of her left shoulder
sprain, left cervical radiculitis, cervical strain and temporary aggravation of cervical degenerative
disc disease. Benefits for left carpal tunnel syndrome were not affected.
In March 15 and April 26, 2011 treatment notes, Dr. Date indicated that appellant could
work modified duty for six hours a day with restrictions that included no lifting, pushing or
pulling over five pounds, and no keyboarding or computer work over a one-hour shift and no
casing. She continued to treat appellant. In a May 24, 2011 report, Dr. Date noted appellant’s
history and diagnosed a left C5-6 radiculopathy, with a palpable double crush syndrome with a
median mononeuropathy at the wrist. She explained that appellant was able to work eight hours
daily within certain restrictions and with a five-minute break every hour. Dr. Date explained that
her opinion differed from that of Dr. Swartz but opined that she did not believe that he had all of
the medical records, including her EMG scan and NCS. She also indicated that appellant was
Board-certified in electrodiagnostic medicine and her interpretation of the results from the EMG
and NCS was done in November 2010.
In a May 21, 2011 statement, appellant indicated that she was confused as OWCP
proposed to terminate her benefits but also expanded her claim to include left carpal tunnel
syndrome and temporary aggravation of cervical degenerative disc disease.
OWCP received a copy of a May 18, 2011 job offer and a June 3, 2011 job offer. It also
received December 16, 2010 and April 26, 2011 patient health questionnaires filled out by
appellant. Also received were diagnostic tests from July 21, 2008, and previously of record,
which Dr. Date stated revealed acute left C5 radiculopathy, with acute denervation.
In a May 28, 2011 statement, appellant indicated that, when she was seen by Dr. Robert
Ferretti, a Board-certified orthopedic surgeon and second opinion physician, on November 28,
2007, he diagnosed small paracentral disc protrusions at C4-5 and mild central disc bulges at
C5-6 and C3-4 from July 2007 and present cervical syndrome. She indicated that she continued
to have pain in the neck area.
In a letter dated May 18, 2011, the employing establishment advised OWCP that it was
able to provide appellant with a position for eight hours a day in accordance with the restrictions
provided by Dr. Swartz.
By decision dated June 15, 2011, OWCP terminated compensation benefits effective that
date for left shoulder sprain, left cervical radiculitis, cervical strain and temporary aggravation of
her cervical degenerative disc disease. Benefits for left carpal tunnel syndrome were not
terminated.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of the analysis manifested, and the medical rationale expressed in
support of the physician’s opinion are facts which determine the weight to be given each
individual report.7
ANALYSIS
OWCP accepted that appellant sustained left shoulder strain, left cervical radiculitis,
cervical strain, temporary aggravation of cervical degenerative disc disease and left carpal tunnel
syndrome and paid appropriate compensation for injury-related disability for work. It paid
appropriate medical benefits and subsequently referred appellant to Dr. Swartz for a second
opinion evaluation. The Board finds that the weight of the medical evidence rested with
Dr. Swartz, who submitted a thorough medical opinion based upon a complete and accurate
factual and medical history. Dr. Swartz performed a complete examination, reviewed the record
and advised that appellant had no continued residuals disability from her accepted employment
injuries, other than the left carpal tunnel syndrome.
In his October 22, 2010 report, Dr. Swartz found minimal decreased strength in the left
shoulder, normal range of motion, no neurological findings and no atrophy in the upper
extremities. He observed that appellant’s primary problem appeared to be cervicothoracic but
her pain drawing indicated significant findings over the left shoulder. Dr. Swartz diagnosed
degenerative disc disease at C4-5 and C5-6 and requested that electrodiagnostic studies. On
December 8, 2010 he noted that electrodiagnostic studies revealed moderate left carpal tunnel
syndrome that corresponded with appellant’s complaints. Dr. Swartz diagnosed left carpal
tunnel syndrome, cervical spine disc protrusion at C4-5 and tendinitis of the left shoulder. He
3

Curtis Hall, 45 ECAB 316 (1994).

4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6

Calvin S. Mays, 39 ECAB 993 (1988).

7

See Connie Johns, 44 ECAB 560 (1993).

5

explained that appellant’s cervical spine strain aggravated appellant’s preexisting discogenic
disease in her cervical spine and the tendinitis appeared to be secondary to a strain which was
related to the work injury. Dr. Swartz explained that the carpal tunnel syndrome was work
related. In a January 30, 2011 report, he reviewed an MRI scan of the left shoulder and opined
that appellant made a complete recovery from the injuries to the cervical spine and left shoulder.
Dr. Swartz explained that there was no tenderness in her left shoulder when he examined her on
October 22, 2010, and her range of motion was good and functional in the left shoulder.
Furthermore, there was no atrophy in the left upper extremity. Regarding the cervical spine,
Dr. Swartz indicated that there was mild tenderness but it was not problematic as she had normal
strength in her arms. He opined that appellant had made a complete recovery from injuries of the
cervical spine and left shoulder. Dr. Swartz indicated that any symptoms that appellant had were
due to degenerative changes on the imaging studies, including the degenerative disease in the
cervical spine and the chronic degenerative changes in the rotator cuff/supraspinatus.
After OWCP requested clarification, Dr. Swartz, in a March 28, 2011 report, opined that
the aggravation of cervical degenerative disease was temporary. He noted that there were
degenerative changes on the MRI scan of the cervical spine that would unlikely have been
affected by the work incident in which appellant was handling bundles of mail. Dr. Swartz noted
that this was an injury that would produce a temporary flare up of pain or symptoms but would
not alter the degenerative changes in the cervical spine. He advised that appellant had a
broad-based disc bulge at C4-5 and C5-6 and the height was well maintained and not considered
significant or affected by the present claim as there was no significant central canal stenosis.
Dr. Swartz explained that there was no evidence of radiculopathy and no nerve root injury. He
found no basis on which to attribute any continuing condition, other than left carpal tunnel
syndrome, to appellant’s employment.
Appellant provided several reports from Dr. Date. However, the majority of Dr. Dates’
reports predate the termination date of June 15, 2011 or do not offer any reasoned opinion that
she had residuals of her accepted conditions, other than left carpal tunnel syndrome, on or after
that date. In her May 24, 2011 report, Dr. Date noted appellant’s history and diagnosed a left
C5-6 radiculopathy, with a palpable double crush syndrome with a median mononeuropathy at
the wrist. The Board notes that this condition was not accepted. Furthermore, Dr. Date indicated
that appellant was able to work for eight hours a day with restrictions. She did not clearly
explain how these conditions were related to the accepted conditions or factors of employment.
Medical reports not containing rationale on causal relation are entitled to little probative value.8
OWCP also received diagnostic reports dating from July 21, 2008. However, these reports were
previously of record and predated the termination of benefits.
Because Dr. Swartz provided the only rationalized medical opinion of record addressing
whether appellant continued to have residuals of her accepted employment injuries; his opinion
constitutes the weight of the medical evidence.
The Board finds that Dr. Swartz’ report established that appellant ceased to have any
disability or condition causally related to her employment-related left shoulder sprain, left
8

See Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

6

cervical radiculitis, cervical strain and temporary aggravation of her cervical degenerative disc
disease, thereby justifying OWCP’s June 15, 2011 termination of compensation benefits
pertaining to these conditions.
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 OWCP met its burden of proof in terminating appellant’s
compensation benefits for her left shoulder sprain, left cervical radiculitis, cervical strain and
temporary aggravation of her cervical degenerative disc disease.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
D.D., Appellant
and
DEPARTMENT OF THE NAVY, PORTSMOUTH
NAVAL SHIPYARD, Kittery, ME, Employer
____________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1467
Issued: February 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2010 appellant filed a timely appeal from a March 11, 2010 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than three percent permanent binaural hearing
loss.
FACTUAL HISTORY
On August 20, 2009 appellant, then a 59-year old retired electronics mechanic, filed an
occupational disease claim alleging that he sustained binaural hearing loss due to occupational
noise exposure. He first became aware of his condition on April 20, 1990 and first related it to
his employment on April 18, 1994. Appellant retired effective January 3, 2007.
Appellant submitted a statement detailing his work and noise exposure history at the
employing establishment. Also submitted were employing establishment audiograms and other

medical care records for the period August 18, 1975 to November 21, 2006. An August 18, 1975
audiogram exhibited the following decibel (dBA) losses at frequencies of 500, 1,000, 2,000 and
3,000 Hertz (Hz): 5, 0, 0, and 0 for the right ear and 5, 0, 0 and 5 for the left ear. Testing at the
same frequencies, a June 25, 1982 audiogram showed dBA losses of 5, 5, 5 and 5 for the right
ear and 15, 5, 0 and 10 for the left ear while a May 2, 2006 audiogram demonstrated losses of 0,
10, 15 and 50 for the right ear and 0, 5, 15 and 60 for the left ear.
A September 29, 2009 statement of accepted facts reported that appellant was employed
as an electrical apprentice and electronics mechanic between 1975 and 2007. He was routinely
exposed to industrial noise produced by grinders, welders, pneumatic tools, generators, power
tools and equipment, cranes, sandblasters, alarms, whistles, and construction and emergency
vehicles. Appellant regularly used earplugs and earmuffs. He was not subjected to loud noise
prior to his federal employment.
On October 6, 2009 the Office referred appellant for a second opinion to Dr. David S.
Hurst, a Board-certified otolaryngologist. In an October 23, 2009 report, Dr. Hurst noted that
appellant worked at the employing establishment for 32 years and did not have any prior history
of hearing loss. He examined appellant and did not observe any physical abnormalities. An
audiogram performed for Dr. Hurst on October 22, 2009 recorded the following dBA losses at
500, 1,000, 2,000 and 3,000 Hz: 10, 15, 25 and 55 for the right ear and 15, 10, 25 and 65 for the
left ear. Dr. Hurst noted that appellant’s bilateral hearing was normal according to the
August 18, 1975 audiogram, but began to deteriorate in or around 1982. He added that
appellant’s audiograms since 1982 implicated a classic pattern of noise-induced hearing loss.
Dr. Hurst diagnosed bilateral sensorineural hearing loss caused by noise exposure at the
workplace and recommended hearing aids.
By decision dated October 28, 2009, the Office accepted appellant’s claim for binaural
hearing loss.
On November 1, 2009 an Office medical adviser agreed with Dr. Hurst that appellant’s
sensorineural hearing loss was caused by occupational noise exposure. Based on the October 22,
2009 audiometric findings, he calculated that appellant sustained 3.8 percent monaural hearing
loss in the right ear, 7.5 percent monaural hearing loss in the left ear or 2.5 percent binaural
hearing loss.1 The Office medical adviser listed October 22, 2009 as the date of maximum
medical improvement.
In a November 2, 2009 letter, the Office notified appellant that he was entitled to a
schedule award of compensation for his hearing loss, but must first file a claim. On
November 16, 2009 appellant filed a claim requesting a schedule award.
By decision dated March 11, 2010, the Office granted appellant a schedule award for
three percent binaural hearing loss for the period October 22 to December 2, 2009.

1

See note 8, infra.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss of or loss of use of scheduled members or functions
of the body. An employee is entitled to a maximum award of 52 weeks of compensation for
complete loss of hearing of one ear and 200 weeks of compensation for complete loss of hearing
of both ears.4 However, the Act does not specify the manner in which the percentage of loss
shall be determined. For consistent results and to ensure equal justice under the law to all
claimants, good administrative practice necessitates the use of a single set of tables so that there
may be uniform standards applicable to all claimants. The American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides)5 has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss: the lesser loss is multiplied
by five, then added to the greater loss, and the total is divided by six to arrive at the amount of
the binaural hearing loss. The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.7
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by the Office.8

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(13).

5

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

6

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

7

J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009); J.B., 60 ECAB ___ (Docket No. 08-1735,
issued January 27, 2009).
8

Holloway, supra note 6 at 325.

3

ANALYSIS
Appellant filed a claim for hearing loss and the Office developed the matter by referring
him to Dr. Hurst. The otolaryngologist conducted a physical examination, reviewed appellant’s
history and audiograms and opined that his hearing loss was due to occupational noise exposure.
The Office medical adviser concurred with Dr. Hurst and determined that appellant sustained 2.5
percent binaural hearing loss, which was rounded up to 3 percent by the Office in its March 11,
2010 decision granting the schedule award.
Applying the Office’s standard procedures to the October 22, 2009 audiogram,
appellant’s right ear recorded losses of 10, 15, 25 and 55 dBA at 500, 1,000, 2,000 and 3,000 Hz,
respectively. The total loss was 105 dBA. When divided by 4, the result was an average hearing
loss of 26.25 dBA. The average hearing of 26.25 dBA was reduced by the fence of 25 dBA to
equal 1.25 dBA. This figure was then multiplied by the established factor of 1.5, yielding 1.875
percent monaural impairment of the right ear. At the same frequencies, appellant’s left ear
recorded losses of 15, 10, 25 and 65 dBA. The total loss was 115 dBA. When divided by 4, the
result was an average hearing loss of 28.75 dBA. The average hearing of 28.75 dBA was
reduced by the fence of 25 dBA to equal 3.75 dBA. This figure was then multiplied by the
established factor of 1.5, yielding 5.626 monaural impairment of the left ear.9
In calculating binaural hearing loss, the lesser monaural loss of 1.875 percent of the right
ear is first multiplied by five to equal 9.375. This amount is added to the greater monaural loss
of 5.626 percent of the left ear to equal 15.001, which is then divided by six to arrive at 2.5002
percent binaural hearing loss. This was properly rounded up to three percent by the Office.10
Consequently, the evidence of record does not establish that appellant has greater than three
percent binaural hearing loss.
Appellant argues on appeal that he started losing his hearing in the 1980s but that his
schedule award was only for six weeks, October 22 to December 2, 2009. When loss of use of a
scheduled member or function of the body is less than 100 percent, the amount of compensation
paid is in proportion to the percentage of loss of use.11 Under the Act, the maximum award for
binaural hearing loss is 200 weeks of compensation. Since appellant’s loss was three percent, he
was entitled to three percent of 200 weeks of compensation, which amounted to 6 weeks of
compensation. His schedule award ran from October 22, 2009, the date of maximum medical
improvement,12 through December 2, 2009, which equates to six weeks. Furthermore, factors
such as employability or limitations on daily activities have no bearing on the calculation of

9

The Board notes that the Office medical adviser incorrectly determined that appellant sustained right and left ear
monaural losses of 3.8 and 7.5 percent, respectively. Application of the Office’s standardized formula, as explained
results in 1.875 percent monaural impairment of the right ear and 5.626 monaural impairment of the left ear.
Nevertheless, he properly found that appellant sustained 2.5 percent binaural hearing loss.
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)
(January 2010).
11

5 U.S.C. § 8107(c)(19).

12

See supra note 7.

4

impairment for schedule award purposes.13 The Office, therefore, properly determined the
number of weeks of compensation for which appellant is entitled.
CONCLUSION
The Board finds that appellant failed to establish that he has more than three percent
binaural hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2010 schedule award decision of the
Office of Workers’ Compensation Programs is affirmed, as modified.
Issued: February 10, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

See J.H., supra note 7.

5