United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMIISTRATION,
Coatesville, PA, Employer
__________________________________________

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

Docket No. 13-723
Issued: July 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 6, 2013 appellant, through her attorney, filed an appeal of a merit decision
of the Office of Workers’ Compensation Programs dated September 26, 2012 denying her claim.
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 established that she sustained an injury causally
related to her employment activities in January 2010.
FACTUAL HISTORY
On March 15, 2010 appellant, then a 50-year-old health aid, filed an occupational disease
claim in which she alleged aggravation of prior work injuries to her brain, neck and back as a
1

5 U.S.C. § 8101 et seq.

result of employment activities in a modified health aid position she held for one week in
January 2010.
By decision dated November 25, 2011, the Board set aside OWCP’s
December 21, 2010 decision denying her occupational disease claim and remanded the file for
further development of the medical evidence.2 The Board noted that appellant had two prior
claims, a July 16, 1999 claim for a back injury File No. xxxxxx749, which was accepted for
lumbosacral sprain and a March 27, 2000 traumatic injury claim File No. xxxxxx477, which was
accepted for concussion and contusion of the head, which needed to be consolidated with the
current claim File No. xxxxxx435.3
The relevant facts reflect that, under subsidiary File No. xxxxxx477, Dr. Milind Kothari,
a Board-certified neurologist and impartial medical specialist, opined that appellant could return
to work limited duty. In a March 23, 2009 report, he found no focal abnormalities present on her
Dr. Kothari opined that appellant was capable of gainful
neurological examination.4
employment. In a May 12, 2009 estimated physical capacities report, he opined that she could
work light duty with restrictions and increase the amount of work as tolerated. Dr. Kothari
opined that, in an eight-hour day, appellant could stand, sit, sit/stand, walk and drive one to three
hours; occasionally bend, squat and climb, frequently reach above shoulder, kneel, crawl and use
feet. No restrictions were provided for simple grasping, fine grasping and fine manipulation.
Based on Dr. Kothari’s work restrictions, the employing establishment offered a modified
health aid position. Physical requirements included pushing, pulling and lifting no more than
20 pounds and sitting and walking for one to three hours. Climbing, squatting and kneeling were
listed as occasional and no restrictions were provided for simple grasping, fine grasping or fine
manipulation. Duties included intermittent sitting, standing and walking.
In an October 30, 2009 report, Dr. Clem Ciccarelli, a Board-certified family practitioner,
advised that appellant had left thoracic outlet syndrome; bilateral carpal tunnel syndrome;
recurring left C6, C7 and C8 paresthesia and radiculopathy; L5/S1 radiculopathy and paresthesia
on the left side and cognition problems. He opined that she was not able to engage in any gainful
employment. Dr. Ciccarelli reviewed a copy of the health aide job description and felt that
appellant could not do the principle duties and responsibilities. He stated that maybe she could
cart less than two to three hours a day.
In an October 30, 2009 letter, Dr. Ciccarelli stated that appellant could not carry out any
of the jobs listed on the modified offer completely. He stated that there was a high risk of
exacerbation of the thoracic outlet where she would need a surgery. Appellant would also
require surgery of her cervical and lumbar spine area if she exacerbates this by going to work.
Dr. Ciccarelli noted that she has significant neurological deficits both in thoracic outlet with
2

Docket No. 11-1054 (issued November 25, 2011).

3

In a December 13, 2004 decision, the Board reversed OWCP’s February 18, 2004 decision in File No.
xxxxxx477 terminating appellant’s compensation benefits. Docket No. 04-1775 (issued December 13, 2004).
4

Specifically, appellant had no evidence of any focal neuropathy, brachial plexopathy or cervical or lumbar
radiculopathy and no evidence of neurogenic thoracic outlet syndrome. Dr. Kothari noted that her Doppler studies
indicated suggestion of vascular thoracic outlet syndrome, but opined that this was not a result of the sequelae of the
March 2000 injury.

2

showing paresthesia in her arm and decreased pulsation of lifting her arm up, backwards.
Appellant also has L5/S1 parasthesia on the left side, more than right. Dr. Ciccarelli also stated
that she has cognitive dysfunction. He indicated that, the neurological deficits both in
appellant’s cervical neck and lumbar spine area in the lower extremity, the carpal tunnel and the
thoracic outlet were unchanged over the years.
On January 15, 2010 Dr. Ciccarelli took appellant off work indefinitely. He diagnosed
exacerbation of the left thoracic outlet, with paraesthesia and cold extremity; decreased pulse on
the C5, C6 and C7 distribution left more than right with head turning and with paraesthesia of the
arm, forearm and fingers; lumbar L5/S1 left more than right; pain/paraesthesia on left side with
weakness in the left upper extremity due to pain and numbness and nerve impingement.
Dr. Ciccarelli opined that all the diagnosed conditions were related to her March 27, 2000 injury
and appellant’s current exacerbation comes from her recent job working conditions.
In a January 20, 2010 report, Dr. Scott M. Fried, an osteopath, provided a detailed history
of the March 27, 2000 work injury. He noted that in January 2010 appellant returned to work
activities doing modified duty as a health aid which required lifting and regular upper extremity
use. Appellant noted significant exacerbation of her symptoms and recurrence of her problems.
Dr. Fried advised that Dr. Ciccarelli appropriately took her out of work on January 15, 2010 and
indicated that exacerbation of her symptoms has calmed down somewhat since she stopped
work. He opined that appellant has a substantial brachial plexopathy on the left secondary to the
work injury as well as ongoing evidence of head injury and postconcussion syndrome with
tension and memory deficit. Dr. Fried opined that she continues to exhibit ongoing issues
secondary to those neuropathies, including overuse issues and low back dysfunction.
Appellant testified on November 4, 2010 that she went out of work for injuries sustained
on March 27, 2000 under File No. xxxxxx477. She did not return until January 2010, when she
accepted a modified health aid position. Appellant indicated that she attended a New Employee
Orientation for a couple of days. She started working her position for four hours on January 7,
2010 and full time on January 8, 2010. Appellant was off work for the weekend on January 9
and 10, 2010. She returned to work on January 11, 2010 and worked until January 12, 2010.
Appellant described her duties as filling water pitchers, sometimes carrying two at a time. She
additionally restocked medical supplies, which she indicated involved reaching, including
overhead reaching and bending and delivering and collecting trays. Appellant also wrote on
folders, which she stated were flimsy and difficult to write on. She stopped work on
January 13, 2010. Appellant further testified that she was trying to learn the electric piano to
assist with cognitive function and use of her hands.
In a November 16, 2010 report, Dr. Ciccarelli indicated that he had been following
appellant since her July 16, 1999 work injury. He reported symptomatology prior to the claimed
injury and recommended that she stop working as she still had several conditions. Dr. Ciccarelli
indicated that she went back to work against medical advice on January 4, 2010 and she tried to
work 8:00 a.m. to 4:30 p.m. He indicated that, when appellant saw him on January 15, 2010, she
was having more pain down her legs, more pain in her arms and more pain tilting her head.
Dr. Ciccarelli opined that she had an exacerbation of her workers’ compensation injury related to
postconcussion injury. He reviewed appellant’s job situation and opined that any amount of
weight and lifting her arms up repetitively, any movement above her head even five pounds or

3

lifting anything up would cause paresthesia as she has a severe thoracic outlet injury that has
never completely recovered. Dr. Ciccarelli noted that the meal tray movement, restocking
supplies and carrying folders and doing ice pitchers would cause a problem. He indicated that
appellant’s increased symptoms were aggravated by work as both her cervical neck and lumbar
back got worse. Dr. Ciccarelli also opined that her postconcussion symptoms were aggravated
by sitting during orientation and sitting at a computer and controlling her hands and finger with a
mouse and keyboard caused muscle fatigue and mental fatigue. He opined that appellant was
unable to do work at all with her upper extremities. Dr. Ciccarelli stated that she was completely
disabled prior to going back to work and was now more disabled than before. He opined that
appellant could not work at any job based on her physical examination because any use of her
upper and lower extremities would only aggravate a chronic ongoing condition. In a
November 17, 2010 report, Dr. Ciccarelli reiterated that her return to work exacerbated her
work-related conditions.
By decision dated March 30, 2012, OWCP denied the claim on the basis that the medical
evidence did not establish that appellant’s diagnosed conditions were causally related to factors
of employment.
On April 4, 2012 appellant, through her attorney, requested a hearing before an OWCP
hearing representative, which was held on July 11, 2012. Appellant’s attorney argued that the
medical evidence was sufficient to establish that her return to work in January 2010 significantly
aggravated her prior work injuries.
In a June 14, 2012 report, Dr. Ciccarelli reported appellant’s symptomology prior to the
claimed January 12, 2010 injury. He noted that she was disabled from March 2000.
Dr. Ciccarelli noted that appellant still had symptoms of paresthesias but they had lessened
somewhat when she decided against medical advice to return to work. He indicated that she
returned to work on January 4, 2010 and worked until January 8, 2010. Appellant was off work
January 9 and 10, 2010 but returned to work on January 11, 2010. On January 12, 2010 she
contacted his office for an appointment and was seen on January 15, 2010. Dr. Ciccarelli
indicated that appellant attempted to keep working. Appellant’s duties were noted as filling
pitchers, carrying two at a time, reaching trays, restocking supplies and performing overhead
bending and reaching. She collected and delivered trays and stacked them. Appellant also had
to write on folders and write things down. She could not do any work after two days because of
the repetitive nature of what was going on. Dr. Ciccarelli noted the position description of
appellant’s duties. He opined that she had an exacerbation of her brachial plexus and that was
why she was sent to Dr. Fried on January 20, 2010. Dr. Ciccarelli stated that Dr. Fried concurred
that appellant’s symptomatology had now exacerbated down her arms and legs and, because of
the stress of the pain, postconcussion mentation changes also occurred. He opined that she
aggravated a chronic ongoing condition that has now gotten worse. The increased physical
activity at work including lifting worsened her fibromyalgia pain and decreased her cognition as
well. At times the pain in her right neck and shoulder, low back and sciatica were debilitating.
Dr. Ciccarelli opined that appellant’s activities at work differed from her activities at home
because of the repetitive use of her arms at work that was done for over an hour at a time, which
in turn exacerbated her thoracic outlet syndrome. He described her work activities of lifting,
reaching, carrying and pushing and noted that she could limit the time spent performing
repetitive activities at home, but not at work.

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By decision dated September 26, 2012, an OWCP hearing representative affirmed the
March 30, 2012 decision. The hearing representative found that appellant returned to work on
January 4, 2010 and attended two full days of new employee orientation. On January 6, 2010
appellant went to the employee health unit and returned to orientation class at 11:00 a.m. and
completed the day. She was on sick leave for four hours on January 7, 2010 and then worked
from 12:00 p.m. until 4:30 p.m. Appellant worked eight hours a day on January 8, 11, 12 and 14,
2010 and requested annual leave for January 13, 2010. She was scheduled off for January 15,
2010 and called her supervisor to advise she would not be returning to work on the advice of her
physician.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within applicable time limitation;
that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.7
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.8
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.9 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.10 The belief of the claimant that a condition was caused or aggravated by her

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael I. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

8

Linda S. Jackson, 49 ECAB 486 (1998).

9

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

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employment is insufficient to establish a causal relationship.11 Simple exposure to a workplace
hazard does not constitute a work-related injury entitling an employee to medical treatment
under FECA.12
ANALYSIS
Based on Dr. Kothari’s referee examination, the employing establishment offered
appellant a modified health aide position, which she accepted despite Dr. Ciccarelli’s objections
that she would risk an exacerbation of her thoracic outlet syndrome and/or her cervical or lumbar
spine conditions. Appellant returned to work on January 4, 2010 and attended two full days of a
New Employee Orientation. She worked from 12:00 p.m. until 4:30 p.m. on January 7, 2010 and
eight hours a day on January 8, 11, 12 and 14, 2010. Appellant stopped work on
January 15, 2010. She argued before OWCP and on appeal that the medical evidence is
sufficient to establish that her return to work in January 2010 significantly aggravated her prior
work injuries. The medical evidence of record, however, is insufficient to establish that
appellant’s diagnosed conditions were exacerbated by her modified health aid position or the
short period of time she worked in January 2010.
In his January 20, 2010 report, Dr. Fried noted that appellant retuned to a modified job
and had an exacerbation of her symptoms and recurrence of her problems. He provided a history
of her work-related March 2000 injury and medical care. Dr. Fried opined that appellant has a
substantial brachial plexopathy on the left secondary to the work injury as well as ongoing
evidence of head injury and postconcussion syndrome with tension and memory deficit. He
opined that she continues to exhibit ongoing issues secondary to those neuropathies, including
overuse issues and low back dysfunction. Dr. Fried, however, failed to provide a medical
opinion relating any or all of these conditions to appellant’s January 2010 return to work.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.13 While Dr. Fried stated that appellant had an
exacerbation of her symptoms and recurrence of her problems after her return to a modified job,
he did not provide any medical reasoning explaining how the established employment factors
caused or contributed to the exacerbation of her conditions. Without medical reasoning
explaining how the established employment factors caused or contributed to her conditions, his
January 20, 2010 report is insufficient to meet her burden of proof.14
Several reports were received from Dr. Ciccarelli. In his January 15, 2010 report,
Dr. Ciccarelli took appellant off work. He advised that she had an exacerbation of the left
thoracic outlet and cervical and lumbar symptoms that were related to her 2000 work injury and
her recent job conditions. However, Dr. Ciccarelli failed to explain how the employment factors
caused or contributed to appellant’s conditions. The Board has held that a medical opinion not
11

Charles E. Evans, 48 ECAB 692 (1997).

12

20 C.F.R. § 10.303(a).

13

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
14

C.B., Docket No. 08-1583 (issued December 9, 2008).

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supported by medical rationale is of little probative value.15 Without medical reasoning
explaining how the established employment factors caused or contributed to appellant’s
conditions, Dr. Ciccarelli’s January 15, 2010 report is insufficient to meet her burden of proof.16
In his subsequent reports, Dr. Ciccarelli noted the duties she performed during her short time as a
modified health aid and described how her work activities exacerbated her thoracic outlet
syndrome, cervical and lumbar radiculopathy and her concussion syndrome. In his last report of
June 14, 2012, he provided a detailed explanation as to how appellant’s activities at work
differed from her activities of daily living as she could limit the time spent performing repetitive
activities at home, but could not do so at work. Dr. Ciccarelli explained that the repetitive use of
her arms at work that was done for over an hour at a time was as well as the increased physical
activity exacerbated her thoracic outlet syndrome, worsened her fibromyalgia and decreased her
cognition. He indicated that at times the pain in her right neck and shoulder, low back and
sciatica were debilitating. While pain due to an employment-related condition can be the basis
for the payment of compensation for disability,17 Dr. Ciccarelli provided no objective evidence
to support that appellant’s condition materially changed after being in employee orientation for
two days and working for four and a half days. Rather, his opinion that her condition was
exacerbated is based solely on her pain complaints. Appellant has complained of pain, both prior
to and after her return to work. Dr. Ciccarelli did not provide any objective medical findings to
support her disability but merely related that she experienced increased pain which was
dehabilitating. Because the record fails to contain objective medical findings to support that
appellant was disabled from her modified position, the Board finds that his November 16 and 17
and June 14, 2012 reports are insufficient to establish her burden of proof.
Appellant and her counsel argued that her conditions were exacerbated by the health aide
position. However, the Board has held that the mere fact that a condition manifests itself during
a period of employment does not raise an inference that there is a causal relationship between the
two.18 Neither the fact that the condition became apparent during a period of employment, nor
the belief that the condition was caused or aggravated by employment factors or incidents, is
sufficient to establish causal relationship.19 Causal relationship must be substantiated by
reasoned medical opinion evidence, which is appellant’s responsibility to submit. For the
reasons noted above, appellant failed to submit sufficient medical evidence to rectify the
deficiencies in her claim.
On appeal, appellant’s counsel has also asserted that appellant has established a
recurrence of disability. The Board notes that the appeal before the Board concerns a claim for
occupational disease, due to an alleged aggravation of conditions resulting from work activities
following a January 11, 2010 return to work, not a claim of recurrence of disability. OWCP’s
procedures provide that if a claim of recurrence of disability is made within 90 days or less
15

Caroline Thomas, 51 ECAB 451 (2000).

16

Supra note 14.

17

Barry C. Peterson, 52 ECAB 120 (2000).

18

See Joe T. Williams, 44 ECAB 518, 521 (1993).

19

Id.

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following the first return to duty, the focus is on disability, rather than causal relationship.20 In
the present case, however, the issue of recurrence of disability is not before the Board.
The Board finds that appellant failed to provide sufficient medical evidence to establish
that she sustained an aggravation of her prior work injuries following a return to modified duties
in January 2010.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an aggravation of her
prior work injuries following a return to modified duties in January 2010, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 26, 2012 is affirmed.
Issued: July 22, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

20

See supra note 7 at Chapter 2.1500(6)(a) (1995).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pueblo, CO, Employer
__________________________________________

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

Docket No. 14-214
Issued: May 7, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant, through his attorney, filed a timely appeal from a
June 5, 2013 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 sustained an occupational disease causally related to
factors of his federal employment.
FACTUAL HISTORY
On July 19, 2012 appellant, then a 46-year-old letter carrier, filed an occupational disease
claim alleging that he sustained an aggravation of chronic right knee strain, chronic left ankle
strain with a permanent aggravation of arthritis, lumbar degenerative joint disease, sacroiliac
1

5 U.S.C. § 8101 et seq.

joint dysfunction, myofascial pain syndrome and thoracic myofascial syndrome causally related
to factors of his federal employment. He stopped work on March 1, 2010.2
By letter dated July 23, 2012, OWCP requested additional factual and medical
information from appellant, including a detailed report from his attending physician addressing
the causal relationship between any diagnosed condition and employment factors.
In a report dated April 12, 2012, Dr. Jack L. Rook, a Board-certified physiatrist,
discussed appellant’s complaints of pain in his low back, right knee and left ankle. Appellant
related a history of numerous work injuries between 1994 and 2010 and he filed three workers’
compensation claims for traumatic injuries. Dr. Rook indicated that OWCP accepted that on
December 18, 1995 appellant sustained a right knee contusion and lumbosacral strain when he
fell while going down stairs. On August 1, 1997 a dog attacked appellant and he fell off a porch
about 12 feet, injuring his back. Appellant filed a recurrence of disability under file number
xxxxxx055 for this injury but it was denied. On July 19, 2005 OWCP accepted that he sprained
his left ankle in file number xxxxxx213. Dr. Rook provided examination findings of full
strength of the lower extremities with no atrophy but tenderness of the left sacroiliac joint and
left paralumbar muscle spasm. He found tenderness to palpation of the medial left ankle joint
and tenderness of the posterior right knee capsule. Dr. Rook diagnosed chronic right knee strain,
chronic left ankle strain, a permanent aggravation of underlying ankle joint arthritis with
osteochondritis dessicans on magnetic resonance imaging (MRI) scan study, chronic low back
pain, a history of L4-5 degenerative disc disease, sacroiliac joint dysfunction on the left,
myofascial pain syndrome and thoracic myofascial pain syndrome. He recommended that
appellant file a traumatic injury claim for his August 1, 1997 back injury. Dr. Rook found that
while work duties contributed to his back worsening over time, it seemed “most appropriate to
label his thoracic and lumbar spinal injuries as being secondary to the fall that occurred on
August 1, 1997.” He further noted that appellant experienced multiple right knee injuries at
work, including injuries on December 18, 1995 and July 12, 2006 and indicated that the left
ankle injury aggravated the right knee injury. Dr. Rook recommended that appellant file a claim
for a right knee injury on July 12, 2006. Regarding the left ankle sprain on July 19, 2005, he
found that “this injury likely aggravated the underlying degenerative joint disease and/or caused
the osteochondritis defect.” Dr. Rook stated:
“I do believe that [appellant’s] work as a letter carrier further contributed to a
permanent aggravation of [his] lumbar degenerative disc disease and left ankle
arthritis condition. [Appellant’s] job was physical demanding and it [is] likely the
job duties performed over many years accelerated the degenerative joint disease
in his left ankle and aggravated his lumbar disc disease.”
Dr. Rook opined that appellant performed “weight-bearing activities” that stressed his lower
extremities. He stated, “I believe there was repeated microtrauma to [appellant’s] left ankle
associated with prolonged standing, walking and going up and down stairs and getting into and
out of his mail vehicle. This repetitive microtrauma likely led to accelerated degeneration of
[appellant’s] left ankle joint including the cartilage, bone and ligaments that make up this joint.”
2

Appellant retired on disability effective October 4, 2010.

2

Regarding appellant’s back condition, Dr. Rook asserted that lifting, twisting and bending while
casing and delivering mail over a period of years stressed the annual fibers of his lumbar spine.
He concluded, “This type of activity likely caused some degree of degeneration to his L4-5 disc
and it likely also caused significant stress to the muscles of his back resulting in the associated
myofascial condition.”
By decision dated October 17, 2012, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that his claimed conditions were causally related
to the identified work factors. It determined that Dr. Rook’s April 2012 report was insufficiently
rationalized to establish that his employment caused or aggravated the diagnosed conditions.
On November 12, 2012 appellant, through his attorney, requested an oral hearing before
an OWCP hearing representative. At the March 22, 2013 hearing, counsel asserted that
Dr. Rook’s opinion was based on an accurate history and review of the medical records. He
maintained OWCP did not explain why Dr. Rook’s opinion lacked rationale. Counsel discussed
appellant’s history of prior work injuries.
In a letter dated February 22, 2012, received by OWCP on March 28, 2013, counsel
advised Dr. Rook that he had lumbar, left ankle and right knee conditions. He submitted the
medical evidence dated 1995 through 2006 that Dr. Rook reviewed in reaching his conclusion.
In a report dated March 12, 2013, Dr. Rook diagnosed a permanent aggravation of left
ankle joint arthritis and osteochondritis. He referred to his April 12, 2012 report, noting that he
had described the history of appellant’s July 19, 2005 work injury. Dr. Rook diagnosed a
permanent aggravation of left ankle arthritis and osteochondritis. He quoted from his April 12,
2012 report finding that the July 19, 2005 employment injury likely aggravated an underlying
degenerative joint disease.
By decision dated June 5, 2013, an OWCP hearing representative affirmed the
October 17, 2012 decision. She found that there was insufficient medical opinion to establish
that the claimed conditions were caused or aggravated by employment. The hearing
representative instructed appellant that he could pursue a worsening of an accepted condition
under his prior number.
On appeal, counsel contends that appellant sustained multiple traumatic injuries from
1992 through 2010. He contends that Dr. Rook’s report is sufficient to show that work factors
contributed to his chronic left ankle strain, aggravation of left ankle arthritis, chronic right knee
strain and aggravation of lumbar degenerative disc disease. OWCP accepted that on
December 18, 1995 appellant sustained a right knee contusion and lumbosacral strain under file
number xxxxxx055 and left ankle sprain on July 19, 2005 under file number xxxxxx213.
Counsel also maintains that appellant sustained an injury to his back on August 1, 1997 when he
fell off a porch during a dog attack and a right knee injury on July 12, 2006. He contends that
OWCP required appellant to show that work factors provided a significant contribution to his
conditions in finding that Dr. Rook’s opinion was insufficient to meet his burden of proof.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical opinion must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
Appellant attributed his aggravation of chronic right knee strain, chronic left ankle strain
with a permanent aggravation of arthritis, lumbar degenerative joint disease, sacroiliac joint
dysfunction, myofascial pain syndrome and thoracic myofascial syndrome to the performance of
his work duties. OWCP accepted the occurrence of the claimed employment factors. The issue,
therefore, is whether the medical evidence establishes a causal relationship between the claimed
conditions and the identified employment factors.
On April 12, 2012 Dr. Rook discussed appellant’s history of traumatic injuries at work
from 1994 to 2010. He noted an accepted claim for a right knee contusion and lumbosacral
strain due to a December 18, 1995 injury and an accepted claim for a left ankle sprain on
July 19, 2005. Dr. Rook further stated that appellant sustained a back injury on August 1, 1997
when he fell off of a porch during a dog attack and a right knee injury on July 12, 2006 when a
shelf fell on his knee. On examination, he found left sacroiliac joint tenderness, left paralumbar
3

5 U.S.C. § 8101 et seq.

4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Alvin V. Gadd, 57 ECAB 172 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

D.D., 57 ECAB 734 (2006); Roy L. Humphrey, 57 ECAB 238 (2005).

9

Id.

4

muscle spasm, left ankle joint tenderness and posterior right knee tenderness. Dr. Rook
diagnosed chronic right knee strain, chronic left ankle strain, and a permanent aggravation of
underlying ankle joint arthritis with osteochondritis, low back pain, a history of L4-5
degenerative disc disease, sacroiliac joint dysfunction on the left, myofascial pain syndrome and
thoracic myofascial pain syndrome. He recommended that appellant file a traumatic injury claim
for his 1997 back injury and 2006 right knee injury. Dr. Rook indicated that his back condition
resulting from his 1997 injury was “likely perpetuated by his ongoing work activities.” He
further found that appellant’s employment “likely” caused a permanent aggravation of his
lumbar degenerative disc disease and left ankle arthritis due to the physical requirements of his
employment. Dr. Rook opined that it was “likely” that repetitive microtrauma to the left ankle
from work duties accelerated left ankle joint degeneration. He asserted that casing mail and
delivering mail over years aggravated the annual fibers of appellant’s lumbar disc and likely
resulted in stress to his back muscles and L4-5 disc degeneration. The Board finds that
Dr. Rook’ s opinion, that appellant’s work duties “likely” aggravated degeneration of the left
ankle and lumbar disc is couched in speculative terms which render it of diminished probative
value.10 To establish causal relationship, a physician’s opinion must be based on a complete and
accurate factual and medical background and must be supported by medical rationale to a
reasonable degree of medical certainly.11 Dr. Rook relied on a history provided by appellant as
experiencing employment injuries on August 1, 1997 and July 12, 2006; however, OWCP has
not accepted the occurrence of these alleged injuries. He relied upon an inaccurate history of the
injury accepted by OWCP. This further reduces the probative value of Dr. Rook’s stated
conclusion that his report is of diminished probative value.12
On March 12, 2013 Dr. Rook clarified that in his April 12, 2012 report he diagnosed a
permanent aggravation of degenerative joint disease as a result of the July 19, 2005 employment
injury. He attributed the condition to appellant twisting his ankle on July 19, 2005. As Dr. Rook
did not address the issue of whether appellant sustained an occupational disease, his report is
insufficient to meet appellant’s burden of proof.
On appeal, counsel asserts that Dr. Rook’s opinion is sufficient to establish that
appellant’s employment duties caused or contributed to his chronic left ankle strain, left ankle
arthritis, right knee strain and aggravation of degenerative disc disease. Dr. Rook’s described the
history of appellant’s injuries and asserts that OWCP erroneously required that work factors
constitute a significant contribution to the condition in order to be accepted as employment
related. As discussed, however, the Board finds that his opinion is speculative and based on a
history of work injuries not accepted by OWCP. Consequently, it is not sufficient to meet
Dr. Rook’s s burden of proof.

10

See Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship
need not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty).
11

See Roger Dingess, 47 ECAB 123 (1995).

12

See Joseph M. Popp, 48 ECAB 624 (1997).

5

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 sustained an occupational disease causally related to
factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 7, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF DEFENSE,
Fort Benning, GA, Employer
__________________________________________

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

Docket No. 11-1840
Issued: April 9, 2012

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 August 4, 2011 appellant, through his attorney, filed a timely appeal from a
February 7, 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.
ISSUE
The issue is whether OWCP properly modified an August 3, 2007 wage-earning capacity
determination and terminated compensation for wage-loss and medical benefits effective
June 6, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was previously before the Board.2 On March 12, 2003 appellant, then a
54-year-old custodian, filed a traumatic injury claim alleging that he sustained back and knee
injuries on March 4, 2003 when he was “cleaning out under the stage.” OWCP accepted a
lumbar strain, posterior cruciate ligament sprain left knee and left medial meniscus tear.
Appellant stopped working on August 28, 2003. He underwent left knee arthroscopic surgery on
December 10, 2003. The Board noted an August 3, 2007 wage-earning capacity determination
based on the selected position of security guard/merchant patroller. The Board indicated that
appellant was being treated for his lumbar condition by Dr. Gary Dawson, a physiatrist, and the
selected position was within his work restrictions. The additional history as reported by the
Board in the July 24, 2009 decision is incorporated herein by reference.
OWCP referred appellant for a second opinion evaluations by Dr. Alexander Doman, an
orthopedic surgeon, and Bruce Atkinson Ph.D, a clinical psychologist. In a report dated
October 23, 2008, Dr. Doman provided a history and results on examination. He diagnosed
degenerative lumbar disc disease with symptom magnification. Dr. Doman opined that the
degenerative condition was not related to the employment injury, as the mechanism of injury
would have resulted in a minor contusion or strain. He also stated that the meniscus tear was
corrected with the surgery. Dr. Doman concluded that appellant’s back symptoms represented
the natural history of the underlying disorder. In a report dated October 29, 2008, Dr. Atkinson
stated that the evidence pointed to significant treatment interference from unconscious secondary
gain factors.
In a report dated August 13, 2008, Dr. J. Kenneth Burkus, an orthopedic surgeon stated
that appellant complained of back pain and bilateral sciatica pain. He noted that appellant had
sustained an injury on March 4, 2003 and stated that an October 1, 2007 magnetic resonance
imaging (MRI) scan showed stenosis at L4-5 and L5-S1 and severe spondylosis at L5-S1. In a
report dated November 25, 2008, Dr. Burkus stated that appellant continued to have back and leg
pain. He stated that appellant did have lumbar spondylosis and stenosis prior to the employment
injury, but he was asymptomatic and his condition was aggravated. Dr. Burkus stated that the
diagnoses and symptoms were directly related to the work injury.
OWCP determined that a conflict in the medical evidence existed and appellant was
referred to Dr. Norman Donati, a Board-certified orthopedic surgeon, to resolve the conflict.3 In
a report dated March 3, 2009, Dr. Donati provided a history and results on examination.4 He
2

Docket No. 08-2505 (issued July 24, 2009).

3

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).
4

Dr. Donati referred to an employment injury to the right knee, but apparently intended to refer to the left knee.

2

noted normal range of motion for the hips and knees, with no discomfort or tenderness in any
areas of the lower extremities. Dr. Donati stated that, based on the evidence, it appeared that
appellant’s low back problems were not causally related to the employment injury. He indicated
that appellant had a preexisting back condition and had sustained a temporary aggravation of a
chronic problem. According to Dr. Donati, a 2007 MRI scan had shown significant changes and
worsening of the lumbar disc problem and appellant’s condition could be significantly improved
by surgical intervention. He stated:
“I do not believe that there is strong enough evidence to indicate that the actual
injury that [appellant] sustained is the main cause of his present ongoing pain and
problems.… I do not feel that there is any further rehabilitation or nonsurgical
treatment that will make any difference as far as improving his condition. I
believe that if [appellant] had not had the above stated injury he would still be
having the same problems that he is having now. [Appellant] does appear to have
a personality that would lead one to believe that he does have some malingering
properties but I think that the overwhelming MRI [scan] and physical
exam[ination] evidence does point to him having considerable chronic
degenerative disc problems and very mild L5 nerve root problems. These
continued problems are not a residual of his injury but are related to his chronic
ongoing degenerative disc and joint disease.”
In a letter dated April 2, 2009, OWCP noted that it had accepted a left knee cruciate
ligament sprain and medial meniscus tear and requested that Dr. Donati provide an opinion on
continuing residuals. By report dated April 16, 2009, Dr. Donati stated, “My review of
[appellant’s] records never indicated that his left knee was actually a work[-]related injury. It
appears that he had degenerative changes of his left knee and they were mistaken for a work
injury. [Appellant] had surgery that really was nothing special and did not treat anything that he
did not already have prior to his claimed work injury.” Dr. Donati stated, “From this work
standpoint I do not feel that [appellant] has any residual problems” and that his problems were
related to his preexisting degenerative arthritis. He concluded, “[Appellant’s] original knee MRI
[scan] indicated no acute abnormalities only chronic problems and he had arthroscopic surgery,
which was of little benefit according to him, indicating that he never did have a work[-]related
injury.”
By letter dated April 20, 2009, OWCP advised appellant that it proposed to modify the
wage-earning capacity determination and terminate compensation for wage-loss and medical
benefits. It provided him 30 days to submit relevant evidence. On May 11, 2009 appellant
submitted a brief April 28, 2009 report from Dr. Burkus, stating that appellant’s examination was
unchanged.
In a decision dated June 4, 2009, OWCP modified the existing wage-earning capacity
determination and terminated compensation for wage-loss and medical benefits effective
June 6, 2009.
Appellant requested a hearing before an OWCP hearing representative, which was held
on September 8, 2009. By decision dated November 25, 2009, the hearing representative
affirmed the June 4, 2009 OWCP decision.

3

On November 25, 2010 appellant requested reconsideration of his claim. He submitted a
note from Dr. Thomas Bernard, an orthopedic surgeon, dated September 14, 2009. Dr. Bernard
diagnosed lumbar spondylosis and reported that appellant stated he was symptomatic since the
injury.
By decision dated February 7, 2011, OWCP reviewed the case on its merits and denied
modification.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.6
With respect to termination of benefits, OWCP has the burden of justifying termination
or modification of compensation. After it has been determined that an employee has disability
causally related to his employment, OWCP may not terminate compensation without establishing
that the disability had ceased or that it was no longer related to the employment.7 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability. 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.8
ANALYSIS
In the present case, OWCP had accepted a lumbar injury as well as a torn left medial
meniscus and posterior cruciate ligament sprain. In affirming the August 3, 2007 wage-earning
capacity determination, the Board noted that the existing medical restrictions were provided by
Dr. Dawson, who was treating appellant’s lumbar condition. To establish a modification of the
wage-earning capacity was warranted, OWCP must show there was a material change in the
injury-related condition.
In this regard there was a conflict in the evidence between the second opinion physician
Dr. Doman, who found that appellant’s degenerative disc disease was not employment related
and Dr. Burkus, who opined that appellant had a continuing employment-related aggravation of
lumbar stenosis and spondylosis. The referee physician, Dr. Donati, provided a detailed medical
report with respect to the lumbar issue presented. He opined that appellant had sustained a
temporary aggravation of the underlying degenerative disc disease, but the continuing condition
5

Sue A. Sedgwick, 45 ECAB 211 (1993).

6

Id.

7

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

8

Furman G. Peake, 41 ECAB 361 (1990).

4

was not related to the employment injury. Dr. Donati indicated that appellant would have the
same current symptoms regardless of the employment injury.
It is well established that when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.9 Dr. Donati
supported his opinion with a detailed examination and review of medical records and his opinion
as to the lumbar condition is entitled to special weight.
The Board finds that OWCP met its burden of proof to modify the wage-earning capacity
determination. The report of Dr. Donati found that there was no continuing employment-related
disability or lumbar condition. This represents a material change in the nature and extent of the
injury-related condition. In addition, based on Dr. Donati’s opinion OWCP also has met its
burden of proof to terminate compensation for wage-loss and medical benefits regarding a
lumbar condition. Having met its burden of proof to terminate compensation, the burden for
reinstating compensation benefits shifts to appellant.10 Appellant submitted a report from
Dr. Bernard, who did not provide an opinion that appellant continued to have an
employment-related disability or lumbar condition. The Board finds that appellant did not
establish a continuing employment-related lumbar condition after June 6, 2009.
The Board notes, however, there remains an issue with respect to termination of medical
benefits for a left knee condition. In this regard there was no conflict in the medical evidence.
Dr. Burkus did not discuss a left knee condition or provide any opinion on the issue. Therefore,
as to the left knee, Dr. Donati is a second opinion physician.11
OWCP did ask Dr. Donati for an opinion as to a continuing employment-related left knee
condition. Dr. Donati’s opinion on this issue is of diminished probative value. He appeared to
base his conclusions on the fact that appellant never had an employment-related left knee injury.
But the record clearly establishes that OWCP had accepted a left knee meniscus tear and a
posterior cruciate ligament sprain. A physician must base his opinion on the accepted factual
background and consider the accepted conditions as employment related.12 OWCP should have
advised Dr. Donati of the accepted conditions and the need to base his opinion on the accepted
facts and requested clarification. The April 16, 2009 report is of diminished probative value and
is not sufficient to meet OWCP’s burden of proof to terminate medical benefits for the accepted
left knee injury.

9

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

10

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

11

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

12

See Paul King, 54 ECAB 356 (2003).

5

CONCLUSION
The Board finds that OWCP met its burden of proof to modify the August 3, 2007 wageearning capacity determination and terminate compensation for wage loss. The Board further
finds that OWCP did not meet its burden to terminate medical benefits for the accepted left knee
conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 7, 2011 is affirmed with respect to modification of
wage-earning capacity and termination of compensation regarding the lumbar condition. The
decision is reversed with respect to termination of medical benefits for a left knee condition.
Issued: April 9, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Grand Coulee, WA,
Employer
__________________________________________

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

Docket No. 17-0603
Issued: July 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 23, 2017 appellant, filed a timely appeal from a January 3, 2017 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 to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a ratable hearing
loss.
FACTUAL HISTORY
On June 14, 2016 appellant, then a 56-year-old hydromechanic, filed an occupational
disease claim (Form CA-2) alleging permanent hearing loss due to exposure at work. He first
1

5 U.S.C. § 8101 et seq.

became aware of his hearing loss on January 21, 2009 and realized that it was causally related to
his employment on April 1, 2010. Appellant did not stop work and continued to be exposed to
noise.
Appellant submitted an employment history and noted that from 1980 to 1984 he worked
for the United States Navy Aviation Structure as a mechanic and welder. He was exposed to
noise from shop equipment and welding machines. Hearing protection was supplied. From 1984
to 1995, appellant worked for Exotic Metals Forming Company, an aircraft parts manufacturer,
as a welder where he was exposed to noise from sheet metal shop equipment and welders. He
was provided hearing protection. From 1995 to 2004, appellant was the owner of Always
Welding CEO, an Aircraft parts manufacturer, and was exposed to noise from shop equipment
eight hours a day. Hearing protection was worn. From 2004 to the present, appellant worked for
the employing establishment as a hydromechanic. He worked on power generators 4 to 10 hours
a day and he was exposed to noise from nine generators. Hearing protection was supplied and
worn. Appellant submitted a job description for a hydromechanic and also his resume.
Appellant submitted a comprehensive hearing test report performed pursuant to the
employing establishment hearing conservation program dated May 9, 2016, which revealed no
major change in appellant’s hearing compared to his baseline test at date of employment. The
audiologist, however, noted that the difference in hearing between appellant’s left and right ears
indicated that his hearing should be retested using a masking procedure in order to accurately
identify hearing levels.
By letter dated June 22, 2016, OWCP advised appellant of the type of evidence needed to
establish his claim. In a letter of the same date, it requested that the employing establishment
address the sources of appellant’s noise exposure, decibel and frequency level, period of
exposure, and hearing protection provided.
On July 11, 2016 appellant responded to OWCP’s questionnaire and indicated that he
was still exposed to hazardous noise at work every day from 89 to 97 decibels. He first noticed
his hearing loss on April 1, 2010. Appellant first related his hearing loss to work exposure after
he experienced ringing in his ears and there was a drop on his comprehensive hearing report. He
noted never filing a hearing loss claim, never having hearing problems, and not participating in
hobbies which involved exposure to loud noises.
On September 14, 2016 OWCP referred appellant, together with a statement of accepted
facts, which noted appellant’s noise exposure history, to Dr. Randall Fong, a Board-certified
otolaryngologist, for an otologic examination and an audiological evaluation. In an October 25,
2016 report, Dr. Fong noted examining appellant on October 25, 2016 and referenced appellant’s
exposure to workplace noise. He reviewed the employing establishment’s audiometric data and
noted that appellant had progressive hearing loss, gradual worsening in the right ear at the 3,000
hertz (Hz) range and a gradual worsening in the left ear at the 4,000 Hz range. Dr. Fong
diagnosed bilateral sensorineural hearing loss. Examination of the ears revealed bilateral
unremarkable auricles, external auditory canals, and tympanic membranes. External auditory
canals and auricles were clear and the nasal canal, oral cavity, oropharynx, and hypopharynx
were clear. Dr. Fong noted appellant’s hearing at the beginning of his federal employment

2

revealed preexisting hearing loss, and a moderate high frequency loss at 3000 Hz and higher in
the left ear and moderate at 4000 Hz in the right. He opined that this loss could have resulted
from appellant’s occupations prior to 2004. Dr. Fong noted that appellant’s present audiometric
findings compared to the beginning of exposure show that there was a slight worsening in both
ears at the higher frequencies. He opined that this change could be related to the additional noise
exposure from 2004 while working at the employing establishment on a more-probable-than-not
basis. Dr. Fong noted that appellant had bilateral sensorineural loss that was in excess of what
would be normally predicated on the basis of presbycusis. He opined that the workplace
exposure was of sufficient intensity and duration to have caused the sensorineural hearing loss.
Dr. Fong recommended bilateral hearing aids and opined that the need for the hearing aids, as
well as the additional hearing loss, was related in part to his exposure to noise while employed
with the Federal Government.
Audiometric testing was performed for Dr. Fong on
October 25, 2016. Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed the following: right ear 10, 15, 15, and 35 decibels; left ear 5, 10, 20, and 60
decibels.
On November 3, 2016 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss due to noise exposure. It noted that the record established that he would benefit
from hearing aids.
On November 9, 2016 appellant filed a claim for a schedule award (Form CA-7).
On November 16, 2016 an OWCP medical adviser reviewed Dr. Fong’s report and the
audiometric test of October 25, 2016. He concluded that, in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment,2
(A.M.A., Guides), appellant had zero percent monaural hearing loss in each ear and zero percent
binaural hearing loss. The medical adviser determined that appellant’s hearing loss was not
severe enough to be ratable for a schedule award after applying OWCP’s standards for
evaluating hearing loss to the results of the October 25, 2016 audiogram. He noted that appellant
reached maximum medical improvement on October 25, 2016.
In a decision dated January 3, 2017, OWCP found that although appellant’s hearing loss
was employment related it was not severe enough to be considered ratable for purposes of a
schedule award. It authorized a hearing aid evaluation and fitting bilaterally.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulation4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

3

and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.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, then added to the greater loss and the total is divided
by six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12 It may follow the advice of its
medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.13
ANALYSIS
OWCP accepted that appellant sustained bilateral hearing loss due to noise exposure from
his federal employment. The issue is whether he has submitted sufficient evidence for a schedule
award by establishing a ratable impairment in accordance with the A.M.A., Guides.
OWCP properly referred appellant to Dr. Fong regarding his hearing loss. Dr. Fong’s
October 25, 2016 examination found that appellant’s bilateral sensorineural hearing loss was due
5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides at 250 (6th ed. 2009).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
13

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

4

to his workplace noise exposure. On November 16, 2016 an OWCP medical adviser reviewed
Dr. Fong’s report and found that the hearing loss was not ratable for schedule award purposes.
He applied their standardized procedures to the October 25, 2016 audiogram performed for
Dr. Fong to determine if appellant’s hearing loss was ratable for schedule award purposes.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibels losses of 10, 15, 15, and 35, respectively. These decibels were totaled
at 75 and were divided by 4 to obtain an average hearing loss at those cycles of 18.75 decibels.
The average of 18.75 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to equal zero percent hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000 These decibels were totaled
at 95 and were divided by 4 to obtain the average hearing loss at those cycles of 23.75 decibels.
The average of 23.75 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to equal 0 which was multiplied by the established factor of 1.5
to compute a zero percent hearing loss for the left ear. Thus, OWCP’s medical adviser
concluded that appellant had no permanent impairment of his hearing that warranted a schedule
award.
Appellant has not submitted any medical report establishing a percentage of hearing loss
which would refute the opinion of Dr. Fong and the medical adviser. The Board therefore finds
that appellant does not have a ratable hearing loss under OWCP’s standardized procedures for
rating hearing loss.
Appellant may, at any time, request a schedule award or increased schedule award based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds OWCP properly denied appellant’s claim for a schedule award for
hearing loss.

5

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Topeka, KS, Employer
__________________________________________

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

Docket No. 09-1231
Issued: July 27, 2010

Case Submitted on the Record

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

JURISDICTION
On April 9, 2009 appellant filed a timely appeal from an August 25, 2008 merit decision
of the Office of Workers’ Compensation Programs denying his claim for a schedule award and
an October 20, 2008 nonmerit decision denying his request for reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained any permanent impairment to his right
arm causally related to his accepted injury; and (2) whether the Office properly denied his
request for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a March 19, 2007 decision, the Board
affirmed the Office’s denial of appellant’s claim for a recurrence of disability commencing

June 22, 2004.1 The facts of the case as set forth in the Board’s prior decision are hereby
incorporated by reference. On April 26, 2007 appellant filed a claim for a schedule award.
In a May 31, 2007 report, Dr. Glenn M. Amundson, an attending Board-certified
orthopedic surgeon, advised that appellant had 19 percent impairment to the whole body as a
result of the August 1, 2001 injury. He noted that the rating was pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (4th
ed. 1993) and based on injury to appellant’s spine.
In a July 27, 2007 decision, the Office denied appellant’s claim for a schedule award. It
found that the medical evidence did not support impairment to a member or function of the body
covered under the schedule at section 8107 of the Federal Employees’ Compensation Act or the
implementing federal regulations.
On September 13, 2007 appellant requested reconsideration and submitted additional
medical evidence. In an August 5, 2007 report, Dr. Amundson stated that appellant sustained a
permanent aggravation to his low back, neck and right upper extremity as a result of the
August 1, 2001 motor vehicle accident. On December 13, 2005 appellant underwent surgery at
the C5-6 and C6-7 levels for an anterior cervical discectomy and fusion. With regard to
permanent impairment, Dr. Amundson advised that appellant had a Grade 2 sensory deficit of 80
percent to C7 sensory function.2 He multiplied this sensory deficit by the five percent maximum
impairment allowed for sensory deficit or pain involving the C7 nerve root.3 This totaled four
percent impairment to the right arm for pain. In rating loss of strength, Dr. Amundson advised
that an electromyogram supported fatigability of appellant’s right triceps (C7 innervated muscle)
for which he assigned a Grade 4 strength deficit of 15 percent.4 He noted that the maximum
impairment allowed for loss of strength involving the C7 nerve root was 35 percent for motor
deficit. This totaled five percent impairment of the right arm for motor loss. Dr. Amundson
combined the four percent sensory loss with the five percent strength loss to total nine percent
impairment to appellant’s right arm due to the C6-7 disc herniation. He based his opinion on a
“reasonable degree of medical certainty.” Dr. Amundson pointed out that appellant had no
preexisting injury or deficit.
On October 19, 2007 the Office referred the medical record to an Office medical adviser
for review. On November 26, 2007 the Office medical adviser stated that Dr. Amundson’s
report did not conform to the A.M.A., Guides because he based his findings on electromyogram
and nerve conduction studies that had been performed on March 31, 2006. The Office medical
adviser stated that Dr. Amundson did not perform an adequate physical examination to support
the impairment that he rated.
1

Docket No. 06-987 (issued March 19, 2007), petition for recon. denied December 20, 2007. The Office
accepted appellant’s claim for a cervical strain, displacement of a cervical intervertebral disc without myelopathy,
degeneration of a cervical disc, right shoulder strain and temporary aggravation of degenerative disc disease at L4-5.
2

A.M.A., Guides 482, Table 16-10.

3

Id. at 489, Table 16-13.

4

Id. at 484, Table 16-11.

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In a December 11, 2007 decision, the Office denied modification of the July 27, 2007
decision. It found the weight of medical opinion was represented by the Office medical adviser.
On July 21, 2008 appellant requested reconsideration. In an April 2, 2008 report,
Dr. Amundson noted that appellant continued to have C7 nerve root deficit and complaint of
reduced range of motion in the cervical spine. He listed findings with regard to appellant’s
reflexes, strength and range of motion. Dr. Amundson did not further address appellant’s
impairment under the A.M.A., Guides.
On August 9, 2008 the Office medical adviser found that Dr. Amundson’s April 2, 2008
report provided incomplete information on which to consider an impairment rating.
In an August 25, 2008 decision, the Office denied modification of its prior decisions
denying appellant’s schedule award claim.
On September 29, 2008 appellant requested reconsideration. He submitted an April 10,
2008 report from Dr. Amundson who rated impairment of the right upper extremity at 12
percent.
In an October 20, 2008 decision, the Office denied appellant’s request for
reconsideration. It found that he did not raise a substantive legal question or include new and
relevant medical evidence.
LEGAL PRECEDENT
Section 8107, the schedule award provision of the Act,5 and its implementing federal
regulations,6 set forth the maximum number of weeks of compensation payable to employees
who sustain permanent impairment from loss or loss of use of listed members or functions of the
body.7 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, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to rate impairment.8
A schedule award is not payable for loss, or loss of use, of a part of the body that is not
specifically enumerated in the schedule.9 Section 8107 and its implementing regulations do not
provide for schedule awards for impairment to the back, spine or the body as a whole. The back
is specifically excluded from the definition of organ.10 To the extent that the schedule award
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Less than total impairment is compensated at a proportionate rate.
1845 (1980).
8

20 C.F.R. § 10.404(a).

9

See James W. Ray, 33 ECAB 1470 (1982).

10

See Paul I. Anderson, 31 ECAB

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990); 5 U.S.C. § 8101(19).

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provisions include the extremities, an employee may be entitled to a schedule award for
permanent impairment to an extremity even though the cause of the impairment originates in the
spine.11
ANALYSIS
The Office accepted appellant’s claim for cervical strain and disc conditions, right
shoulder strain and temporary aggravation of degenerative disc disease at L4-5. Appellant filed
a claim for a schedule award which was denied by the Office based on the finding by an Office
medical adviser that appellant’s attending physician, Dr. Amundson, did not provide adequate
information on which to rate permanent impairment. The Board finds that the medical evidence
of record is sufficient to establish that appellant sustained nine percent impairment to his right
arm due to his accepted injury.
On August 5, 2007 Dr. Amundson provided findings on examination of appellant, noting
that residuals of the accepted conditions impaired the right upper extremity resulting from the
August 1, 2001 employment injury. His opinion of causal relationship was based on a
reasonable degree of medical certainty,” pointing out there was no preexisting injury.
Dr. Amundson identified the C7 nerve root as causing both sensory and motor deficit to the right
arm based on radiculopathy into the upper extremity. He noted that appellant underwent cervical
discectomy and fusion on December 5, 2005 and addressed his postoperative course of
treatment. Despite surgery, appellant still has C7 radiculopathy with his complaints largely
unchanged. As to sensory deficit, Dr. Amundson noted that Table 16-13, page 498, provided a
maximum impairment of five percent for sensory loss involving the C7 spinal nerve. He
classified appellant’s symptoms under Table 16-10, page 482, as Grade 2 for decreased
superficial cutaneous pain and tactile sensibility for which he allowed 80 percent. Multiplying
the maximum impairment value of 5 percent by the 80 percent deficit, equals 4 percent sensory
loss to the right arm. For loss of motor strength, Dr. Amundson noted that Table 16-13 provided
a maximum impairment of 35 percent for the C7 nerve. He classified appellant’s motor deficit
under Table 16-11, page 484, as Grade 4 for which he allowed 15 percent. Dr. Amundson
multiplied the 35 percent maximum value by the 15 percent deficit to find 5 percent motor loss
to the right arm. He combined the motor and sensory losses to total nine percent impairment to
appellant’s right arm based on residuals of C7 radiculopathy.12 The Board finds that
Dr. Amundson provided an impairment rating based on C7 radiculopathy causing motor and
sensory impairment to appellant’s right arm. His rating is based on a proper application of the
A.M.A., Guides and constitutes the weight of medical opinion. As an attending physician,
Dr. Amundson examined appellant, provided an accurate history of medical treatment and
surgery and supplied a thorough description of the residuals affecting the arm. He stated the
reasons for selecting the deficit grades under Table 16-10 and 16-11.
Although the Office medical adviser found that Dr. Amundson’s rating was not sufficient
to support a schedule award, the Board does not share in this conclusion.

11

George E. Williams, 44 ECAB 530, 533 (1993).

12

See Combined Values Chart, page 604.

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The Board will set aside the August 25, 2008 Office decision. The case is remanded to
the Office to issue a schedule award conforming to this decision.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.13 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.14 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.15
ANALYSIS -- ISSUE 2
On reconsideration, appellant submitted an April 10, 2008 report from Dr. Amundson
that was not previously considered by the Office. Dr. Amundson further discussed the issue of
appellant’s impairment with regard to the A.M.A., Guides. This evidence is new to the record
and relevant to the issue of the extent of permanent impairment caused by appellant’s accepted
injury. It is sufficient to require further review of the merits of appellant’s claim. The case will
be remanded for the Office to review this evidence. After such further development of the claim
as it deems necessary, it shall issue an appropriate schedule award decision on the extent of
impairment to appellant’s right arm.16
CONCLUSION
The Board finds that appellant has nine percent impairment to his right arm. The Board
further finds that the Office abused its discretion in denying his request for reconsideration.

13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

15

Id. at § 10.608(b).

16

The record on appeal includes evidence received after the Office’s October 20, 2008 decision. The Board may
not consider evidence for the first time on appeal. 20 C.F.R. § 501.2(c). Following appellant’s April 9, 2009 appeal
to the Board, the Office issued an April 29, 2009 schedule award. As this decision was issued after the Board took
jurisdiction of the case, it is null and void. The Board and the Office may not have simultaneous jurisdiction over
the same issue. See Douglas E. Billings, 41 ECAB 880 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the October 20 and August 25, 2008 decisions of
the Office of Workers’ Compensation Programs be set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: July 27, 2010
Washington, DC

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

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

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

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