United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
ARIZONA AIR NATIONAL GUARD,
Tucson, AZ, Employer
__________________________________________

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

Docket No. 08-1517
Issued: December 3, 2008

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 May 1, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 25 and November 27, 2007 merit decisions, denying his claim for
a schedule award for an employment-related loss of hearing, and an April 14, 2008 decision,
denying his request for further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that he sustained a ratable hearing loss
entitling him to a schedule award; and (2) whether the Office properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 9, 2006 appellant, then a 54-year-old fuels distribution system worker, filed
an occupational disease claim (Form CA-2) alleging that he developed chronic tinnitus and
hearing loss due to high frequency jet noise during his work on the jet line. He had been a full-

time employee since 1974 and, beginning in the early 1990s, experienced progressively
worsening ringing in his ears. The employing establishment acknowledged that the work
environment around the air force base was very hazardous for noise. Appellant submitted
medical and testing records dating from January 23, 1971 to August 16, 2005 demonstrating a
progressive hearing loss and confirming his tinnitus.
On April 11, 2007 the Office referred appellant for a second opinion. On April 25, 2007
Dr. Eugene P. Falk, Board-certified in otolaryngology, examined appellant noting, “[h]e does
have bilateral tinnitus since 1983.” He performed an audiological evaluation finding that
appellant had normal hearing in the speech frequencies up to 2,000 cycles per second (cps) but at
greater than 2,000 cps there was a sharp drop off which was symmetrical and bilateral to about
60 to 65 decibels with excellent discrimination and normal tympanometry. Dr. Falk observed,
“[appellant] will need hearing aids for the rest of his life.”
Dr. Brian E. Schindler, an Office medical consultant and Board-certified
otolaryngologist, reviewed appellant’s record on July 5, 2007. He stated that appellant sustained
a bilateral high frequency sensorineural hearing loss causally related to his federal employment
and listed April 25, 2007 as the date of appellant’s maximum medical improvement. As to
calculating a schedule award, Dr. Schindler found that, based on Dr. Falk’s April 25, 2007
audiogram, appellant did not have a ratable hearing loss. He also indicated that he would not
authorize a hearing aid.
In a decision dated July 25, 2007, the Office accepted that appellant sustained an
employment-related hearing loss. However, because the hearing loss was not ratable, it denied a
schedule award. Further, the Office denied appellant’s request for a hearing aid.
On August 16, 2007 Dr. Ann S. Ash, Board-certified in family medicine, advised the
Office arguing that appellant “needs hearing aids and would benefit substantially from them.”
Appellant subsequently filed a request for reconsideration on August 20, 2007.
On October 2, 2007 the Office requested that Dr. Schindler review the record to
determine whether appellant would benefit from a hearing aid and to confirm whether he had a
ratable hearing loss. Dr. Schindler responded on November 14, 2007, stating that according to
the “A[merican] M[edical] A[ssociation,] [Guides] to [the Evaluation of] Permanent Impairment
(5th edition) which is the formula used by the [Department of Labor]” appellant has a zero
percent hearing loss. He stated that appellant “will not likely experience substantial benefit from
hearing aids,” however, “a trial of binaural amplification with digital aids could be tried to see if
they are helpful.”
On November 27, 2007 the Office issued a decision denying appellant a schedule award,
finding that he did not have a ratable hearing loss. It authorized hearing aids on a trial basis,
maintaining that they would be authorized for ongoing use if appellant and his doctor found them
beneficial.
On February 1, 2008 appellant filed a request for reconsideration. He submitted a
statement dated January 5, 2008 detailing the impact of his hearing loss and tinnitus on his daily

2

life and activities. Appellant also submitted several statements from friends and family
describing their observations regarding his hearing loss.
On April 14, 2008 the Office denied appellant’s request for reconsideration finding that
the evidence submitted was not relevant to the issue of whether he sustained a ratable hearing
loss.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 provides
for compensation to employees sustaining permanent loss or loss of use, of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides (5th ed. 2001) has been adopted by the Office
for evaluating schedule losses and the Board has concurred in such adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.3 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged.4 The average is then reduced by the 25 decibel fence.
The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural
hearing loss.5 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.6 The Board has
concurred in the Office’s adoption of this standard for evaluating hearing loss.7
Regarding tinnitus, the A.M.A., Guides states:
“Tinnitus in the presence of unilateral or bilateral hearing impairment may impair
speech discrimination. Therefore, add up to five percent for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.”8

1

5 U.S.C. §§ 8101-8193.

2

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

3

A.M.A., Guides 250.

4

Id.

5

Id.

6

Id.

7

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

8

Supra note 3.

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ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant had no ratable hearing
loss and thus it is not compensable. Dr. Falk, a Board-certified otolaryngologist, reported that
appellant sustained bilateral tinnitus since 1983; that although appellant’s speech was normal in
frequencies up to 2,000 cps, there was a sharp drop off in frequencies greater than 2,000 cps,
which was symmetrical and bilateral, but speech discrimination was excellent.
Dr. Schindler, the Office medical consultant, properly applied the fifth edition of the
A.M.A., Guides and the Office’s standardized procedures to the April 25, 2007 audiogram
performed by Dr. Falk. Testing for the right ear at frequency levels of 500, 1,000, 2,000 and
3,000 cps revealed decibel losses of 10, 10, 10 and 60 respectively. These decibel losses were
totaled at 90 and divided by 4 to obtain the average hearing loss per cycle of 22.5. The average
of 22.5 was then reduced by the 25 decibel fence to equal 0 decibels for the right ear. The 0 was
multiplied by 1.5 resulting in a 0 percent loss for the right ear. Testing for the left ear revealed
decibel losses of 15, 10, 10 and 55, respectively. These decibel losses were totaled at 90 and
divided by 4 to obtain the average hearing loss per cycle of 22.5. The average of 22.5 was then
reduced by the 25 decibel fence to equal 0 decibels for the left ear. The 0 was multiplied by 1.5
resulting in a 0 percent loss for the left ear. Accordingly, the Office medical adviser correctly
calculated appellant’s hearing loss under the Office’s standardized procedures to be nonratable
for both the right and left ear.
The Board finds that Dr. Schindler applied the proper standards to the audiometric
findings, resulting in a calculation of zero percent binaural hearing loss. In order to be eligible
for a schedule award, appellant must have a loss above 25 decibels when averaging his hearing
loss at the 500, 1,000, 2,000 and 3,000 cps levels. This 25 decibel fence exists because,
according to the A.M.A., Guides, the ability to hear everyday sounds under everyday listening
conditions is not impaired when the average hearing loss levels are 25 decibels or less.9 While
the Board finds that appellant sustained an employment-related hearing loss, it is not ratable for
purposes of a schedule award.
Further, appellant claimed that he suffered from chronic tinnitus. According to the
A.M.A., Guides, tinnitus in the presence of monaural hearing impairment may impair speech
discrimination and therefore up to five percent may be added to the measurable hearing loss if
tinnitus impacts the ability to perform daily activities.10 However, subjective information
regarding the impact of tinnitus on daily life should not be the sole criteria for determining
impairment. Objective data must be integrated with the subjective data to estimate the degree of
impairment.11
In his medical notes, Dr. Falk noted that appellant had bilateral tinnitus since 1983 and
his prior medical records established the existence of this condition. However, according to
9

See id.

10

Id.

11

Id.

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Dr. Falk, appellant had excellent speech discrimination. Dr. Schindler did not discuss the
tinnitus in his report or mention that it impacted appellant’s hearing as appellant’s hearing loss
was not ratable.
Although appellant contends that his tinnitus adversely affects his home and work life, it
is for the evaluating physician to integrate any subjective complaints with objective data to
estimate the degree of impaired speech discrimination due to tinnitus. The Board finds that
appellant is not entitled to an additional award for tinnitus because the medical evidence does not
establish a ratable hearing impairment or that tinnitus was impacting his speech discrimination.12
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act13 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.14 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).15
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,16 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.17 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.18 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.19

12

The Board notes that appellant also stated in his appeal that he was authorized for hearing aids on a trial basis
and they have improved his quality of life. In its letter authorizing the trial period for the hearing aids, the Office
stated that if appellant and his doctor determined the hearing aids to be beneficial they may be authorized on an
ongoing basis. If appellant has found the hearing aids useful he should request such ongoing authorization from the
Office, as the permanent authorization of hearing aids is not an issue properly before the Board. See 20 C.F.R.
§ 501.2(c).
13

5 U.S.C. §§ 8101-8193.

14

Id. at § 8128(a).

15

Annette Louise, 54 ECAB 783, 789-90 (2003).

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

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The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record20 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.21
ANALYSIS -- ISSUE 2
Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law; he has not advanced a relevant legal argument not previously considered by the
Office, and he has not submitted relevant and pertinent new evidence not previously considered
by the Office.
Appellant submitted several statements from himself and his family and friends
addressing the impact of his hearing loss on his daily activities. This evidence is not relevant to
the issue on reconsideration. The Office’s November 27, 2008 decision denied appellant’s claim
finding that his hearing loss was not ratable and therefore ineligible for a schedule award. The
statements addressing his hearing loss are not relevant to the medical question of whether the
extent of his hearing loss is ratable. The Board held that the submission of evidence which does
not address the particular issue involved in the case does not constitute a basis for reopening the
claim.22
Further, appellant did not show that the Office erroneously applied or interpreted a point
of law, nor did he advance a point of law not previously considered by the Office. Therefore, the
Office properly refused to reopen his claim for a review on the merits.
CONCLUSION
The Board finds that appellant did not sustain a ratable hearing loss entitling him to a
schedule award. Further, the Office properly denied his request for further merit review.

20

D.I., 59 ECAB___(Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).
21

D.K., 59 ECAB___(Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).
22

See David J. McDonald, 50 ECAB 185 (1998).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 14, 2008 and November 27, 2007 are affirmed.
Issued: December 3, 2008
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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Greensboro, NC, Employer
__________________________________________
Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-0588 &
21-0599
Issued: January 21, 2022

Case Submitted on the Record

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

On March 8, 2021 appellant, through her representative, filed a timely appeal from a
September 11, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP)
under OWCP File No. xxxxxx221. The Clerk of the Appellate Boards assigned the appeal Docket
No. 21-0599. Also on March 8, 2021, appellant, through her representative, filed a timely appeal
from a September 18, 2020 merit decision of OWCP under OWCP File No. xxxxxx298. The Clerk
of the Appellate Boards assigned that appeal Docket No. 21-0588.
On June 7, 2014 appellant, then a 32-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed “occupational stress” due to factors of her federal
employment. She asserted that a series of events contributed to her condition, including that a
truck driver for the employing establishment with whom she had worked, M.S., murdered another
postal clerk whom she knew. Appellant indicated that M.S. had also harassed her while at the
employing establishment, had her contact information, and would send her inappropriate photos
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.

to her telephone. She explained that contemporaneously with the murder incident she was verbally
assaulted by a coworker who cursed at her while at the time clock and she was required to call the
police on a postal customer who had followed her and yelled at her over a piece of previously
returned mail. Appellant explained, that due to the murder by M.S., she was in consultation with
the Employee Assistance Program (EAP) 2 and that the acts of her coworker and the postal
customer were more than she could take emotionally. She noted that she did not feel safe at work.
OWCP assigned that claim OWCP File No. xxxxxx221.
By decision dated December 19, 2014, OWCP denied appellant’s emotional condition
claim under OWCP File No. xxxxxx221, finding that the medical evidence of record was
insufficient to establish that a medical condition arose during the course of employment and within
the scope of compensable work factors. It found that there were no accepted events that, were
compensable factors of employment and, while the events involving M.S. occurred as alleged, they
were not directed at appellant, nor did they involve her. OWCP found that the fact that she used
to work with M.S. and knew at least one of his victims were not compensable factors of her federal
employment. It further found that a postal customer had not verbally abused appellant on June 7,
2014 as alleged. 3
On May 18, 2015 appellant, then a 53-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 12, 2015 she developed stress and anxiety due to harassment
by management. Specifically, she alleged that management forced her to sit in a wheelchair for
eight hours with no duties, denied her union representation, ordered her to remain in an office with
two supervisors, and forced her to leave the building. OWCP assigned that claim OWCP File No.
xxxxxx298.
By decision dated September 16, 2016, under OWCP File No. xxxxxx298, OWCP found that
the evidence of record established a compensable factor of employment with respect to harassment. 4
However, it denied her claim, finding that the medical evidence of record was insufficient to establish
that her stress condition had been caused or aggravated by the accepted employment factor.
Appellant, through her representative, subsequently submitted requests for reconsideration
under both OWCP File Nos. xxxxxx221 and xxxxxx298. OWCP received a number of medical
reports from Dr. Rupinder Kaur, a Board-certified psychiatrist, which related to both of appellant’s
emotional condition claims.
By decision dated October 25, 2016, OWCP denied modification of the denial of the claim
under OWCP File No. xxxxxx221.

2

Appellant submitted a note from a USPS EAP consultant who noted that appellant had contacted EAP on April 9,
2014 and had continued counseling.
3

By decision dated September 29, 2015, under OWCP File No. xxxxxx221, OWCP’s hearing representative
affirmed the December 19, 2014 denial decision.
4

It found management’s requiring appellant to sit in a wheelchair in the middle of the workroom floor in front of
coworkers constituted harassment.

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By decision dated June 13, 2018, OWCP denied modification of the denial of the claim
under OWCP File No. xxxxxx298.5
Appellant, through her representative again requested reconsideration of the denials of both
claims.
By decision dated September 11, 2020 under OWCP File No. xxxxx221, OWCP denied
modification of the October 25, 2016 decision.6
By decision dated September 18, 2020, under OWCP File No. xxxxxx298, OWCP, denied
modification of the June 13, 2018 decision.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.7 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 8
Herein, appellant’s claims under OWCP File Nos. xxxxxx298 and xxxxxx221 both involve
emotional conditions, alleging that she sustained PTSD due factors of her federal employment,
including harassment at work. Therefore, for full and fair adjudication, this case must be remanded
to OWCP to administratively combine OWCP File Nos. xxxxxx298 and xxxxxx221. This will
allow OWCP to consider all of the relevant claim files and accompanying evidence in developing
appellant’s current compensation claim. Following this and other such further development as
deemed necessary, OWCP shall issue de novo merit decisions regarding appellant’s emotional
condition claims.

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Appellant, through her representative, appealed to the Board on November 10, 2018. By decision dated July 1,
2019, the Board affirmed OWCP’s June 13, 2018 decision finding that she had not met her burden of proof to establish
an emotional condition causally related to the accepted compensable factor of her federal employment. Docket No.
19-0237 (issued July 1, 2019).
6

The Board notes that, by decision dated December 19, 2017 under OWCP File No. xxxxxx221, OWCP denied
appellant’s request for reconsideration of the merits of her claim. However, on March 11, 2018 appellant, through
counsel, appealed to the Board. By decision dated July 1, 2020, the Board set aside the December 19, 2017 decision,
finding that OWCP improperly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5
U.S.C. § 8128(a). The Board remanded the case for an appropriate merit decision on appellant’s claim. On remand,
OWCP issued the September 11, 2020 merit decision.
7

T.T., Docket No. 21-0049 (issued May 3, 2021); R.R., Docket No. 19-0368 (issued November 26, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c (February 2000).
8

Id.

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IT IS HEREBY ORDERED THAT the September 11 and 18, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: January 21, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2131
Issued: September 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 17, 2013 appellant filed a timely appeal from the May 8, 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 met his burden of proof to establish that he has more than
a two percent permanent impairment of his right leg, for which he received a schedule award.
FACTUAL HISTORY
On June 27, 2012 appellant, then a 42-year-old letter carrier, filed an occupational disease
claim alleging that he sustained osteoarthritis of his right knee due to the walking duties required
by his job. He first became aware of his claimed condition on February 6, 2010 and first realized
1

5 U.S.C. §§ 8101-8193.

that it was caused or aggravated by his work on January 12, 2012. Appellant did not stop work.2
In an accompanying statement, he advised that he first noticed that his right knee was hurting on
February 6, 2010 when he had to walk through deep snow to deliver the mail. Appellant
believed that his right knee condition was caused by his job requirements, including engaging in
excessive walking and walking on uneven terrain and slippery surfaces.
In a May 5, 2012 report, Dr. Patrick J. McMahon, an attending Board-certified orthopedic
surgeon, discussed appellant’s medical history, including right knee pain associated with his
work duties since February 2010. He noted that x-rays showed arthritis and signs of prior
surgery in appellant’s right knee. Dr. McMahon stated that, on examination, appellant reported
tenderness over the right medial joint line of his right knee, but no tenderness over the right
lateral joint line. Strength in appellant’s right knee was normal and there was mild effusion.
OWCP accepted that appellant sustained aggravation of joint effusion of his right knee.
In a report dated February 21, 2013, Dr. Michael J. Platto, an attending Board-certified
physical medicine and rehabilitation physician, detailed findings of his physical examination of
appellant. He exhibited normal posture and gait and was able to squat down and get back up
again independently. Dr. Platto had 100 degrees of active flexion of the right knee and 0 degrees
of extension. He stated that appellant had moderate-to-severe crepitus in the right knee, motor
strength was 5/5 in both legs and sensation was intact upon pinpoint testing. Appellant had a 13
degree varus deformity of his right knee. Dr. Platto provided an impairment rating evaluation for
appellant’s right leg. He noted that, under Table 16-3 (Knee Regional Grid) on page 509 of the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009), the most appropriate diagnosis would be for a class 1 total
meniscectomy (medial or lateral) or meniscal transplant (allograft). Dr. Platto noted that
multiple diagnoses could be applied, including anterior cruciate repair; but due to the lack of
instability appellant would not qualify for an impairment based on this diagnosis. He stated that
degenerative joint disease of the right knee could be considered, but that appellant’s 7.4
millimeter medial joint space observed on x-rays would not qualify him for a schedule award
because Table 16-3 on page 511 of the sixth edition of the A.M.A., Guides only provided
impairment for a three millimeter cartilage interval or less. Dr. Platto concluded that appellant’s
meniscus injury was the most appropriate diagnosis for rating his right leg impairment under
Table 16-3. Under Table 16-6 on page 516, appellant’s American Academy of Orthopedic
Surgery scale score of 66 and his normal posture and gait without orthosis meant that he had a
grade modifier 0 for Functional History (GMFH). Under Table 16-7 on page 517, he had
moderate palpatory findings in terms of crepitus, pain to palpation and mild restriction upon knee
flexion which warranted a grade modifier 1 for Physical Examination (GMPE).
Dr. Platto also found that appellant had a 13 degree varus deformity of the right knee,
noting that the sixth edition of the A.M.A., Guides does not contain a table which gives a
2

Appellant originally sustained a twisting injury to his right knee in 1997 when he punched a punching bag while
serving in the U.S. Army. He had previously undergone right knee surgery, including anterior cruciate ligament
repair and medial meniscectomy in April 1997, meniscectomy in April 2001, anterior cruciate cadaver repair and
cadaver meniscus replacement in March 2002 and medial meniscectomy and microfracture surgery in
December 2003.

2

specific rating for varus deformity. He stated that Table 17-10 on page 537 of the fifth edition of
the A.M.A., Guides stated that a 13 degree varus deformity would be a severe impairment
warranting a grade modifier 3. Dr. Platto stated that appellant did not have a grade modifier for
Clinical Studies (GMCS) because x-ray and magnetic resonance imaging (MRI) scan reports
were used to make the definition of class. He applied the net adjustment formula to find a net
adjustment modifier of +1 which meant that, after moving one place to the right of the seven
percent default value found on Table 16-3, appellant had a diagnosis-based impairment rating of
eight percent for his right leg. Dr. Platto stated that page 543 of the sixth edition provided, if
active range of motion impairment percentage is greater than the percentage impairment derived
from a diagnosis-based class, then the impairment is rated by range of motion as a stand-alone
rating. Under Table 16-23 on page 549, appellant’s 100 degrees of active flexion of his right
knee warranted a 10 percent rating for his right leg. Under Table 16-17 on page 545, he had a
grade modifier 0 for functional history and therefore the total impairment of his right leg, based
on the range-of-motion method, was 10 percent.3
On March 15, 2013 appellant filed a claim for a schedule award due to his accepted work
injury.
On April 14, 2013 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, noted that Dr. Platto made reference to the standards of both the
fifth and sixth editions of the A.M.A., Guides, but stated that this was “not appropriate and
invalidates his recommendation since only [the sixth edition of the A.M.A., Guides] is
appropriately used for this calculation.” He noted that the only accepted condition for
appellant’s claim was aggravation of joint effusion of the right knee. Dr. Berman stated that this
was based upon a knee sprain and did not constitute an aggravation of osteoarthritis since the
“accepted condition does not state that it is aggravation of osteoarthritis.” He recommend that
appellant receive a schedule award for the right knee based upon Table 16-3 on page 509 of the
sixth edition of the A.M.A., Guides for the class 1 diagnosis of “Strain; tendinitis” which
involved “palpatory findings and/or radiologic findings.” Dr. Berman determined that appellant
fell under the default value of two percent of the right leg. Under Table 16-6, Table 16-7 and
Table 16-8 on pages 516 through 520 of the sixth edition, appellant had a grade modifier 1 for
functional history adjustment, grade modifier 1 for physical examination and grade modifier 1
for clinical studies. Application of the net adjustment formula meant that there was zero
adjustment from the two percent default value. Dr. Berman stated that appellant reached
maximum medical improvement on February 21, 2013 and concluded that the total impairment
of his right leg was two percent.
In a May 8, 2013 decision, OWCP granted appellant a schedule award for a two percent
permanent impairment of his right leg. The award ran for 5.76 weeks from February 21
to April 2, 2013 and was based on Dr. Berman’s impairment rating using the physical findings
by Dr. Platto.

3

In a May 30, 2013 report, Dr. McMahon indicated that appellant had trace effusion in his right knee.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 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
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.7
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.8 After the class of
diagnosis (CDX) is determined from the Knee Regional Grid (including identification of a
default grade value), the net adjustment formula is applied using the grade modifier for
functional history, grade modifier for physical examination and grade modifier for clinical
studies. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.10
It is well established that, in determining the amount of a schedule award for a member of
the body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.11 There is no basis for including subsequently acquired conditions.12

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
8

See A.M.A., Guides 509-11 (6th ed. 2009).

9

Id. at 515-22.

10

Id. at 23-28.

11

D.F., 59 ECAB 288 (2007); Kenneth E. Leone, 46 ECAB 133 (1994).

12

R.G., Docket No. 13-220 (issued May 9, 2013).

4

When a claimant does not demonstrate any permanent impairment caused by the accepted
exposure, the claim is not ripe for consideration of any preexisting impairment.13 OWCP
procedures provide:
“Impairment ratings for schedule awards include those conditions accepted by the
OWCP as job-related, and any preexisting permanent impairment of the same
member or function. If the work-related injury has affected any residual
usefulness in whole or in part, a schedule award may be appropriate. There are no
provisions for apportionment under FECA. Rated impairment should reflect the
total loss as evaluated for the schedule member at the time of the rating
exam[ination].14
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is “the primary method of calculation for the lower
limb” and that most impairments are based on the diagnosis-based impairment where impairment
class is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination and clinical studies.15 Chapter 16 further provides:
“Alternative approaches are also provided for calculating impairment for
peripheral nerve deficits, complex regional pain syndrome, amputation and range
of motion. Range of motion is primarily used as a physical examination
adjustment factor and is only used to determine actual impairment values when it
is not possible to otherwise define impairment.”16
Chapter 15 of the A.M.A., Guides, pertaining to the upper extremities, provides that the
range of motion method for evaluating permanent impairment of the upper extremities may be
used to determine actual impairment values where a diagnosis-based impairment grid permits its
use.17 When the diagnosis-based impairment grid permits such use, as evidenced by an asterisk
(*) with explanatory text, the range of motion method is a stand-alone method for determining
impairment and is not combined with the diagnosis-based impairment.18 The Board notes,
however, that the diagnosis-based grids of Chapter 16 do not contain any asterisks with
explanatory text providing for use of the range of motion method to evaluate permanent
impairment of the lower extremities.19 With respect to rating of the lower extremities, the

13

Thomas P. Lavin, 57 ECAB 353 (2006).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(d) (February 2013).
15

A.M.A., Guides 497.

16

Id.

17

Id. at 387.

18

Id. at 391-405.

19

Id. at 501-15.

5

Summary portion of Chapter 16 states, “Only, if no other approach is available to rating,
calculate impairment based on range of motion as explained in Section 16.7.”20
While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence.21 Accordingly, once OWCP undertakes
to develop the medical evidence further, it has the responsibility to do so in the proper manner.22
ANALYSIS
OWCP accepted that appellant sustained aggravation of joint effusion of his right knee.23
In a May 8, 2013 decision, it granted him a schedule award for a two percent permanent
impairment of his right leg. The award was based on the impairment rating of Dr. Berman, a
Board-certified orthopedic surgeon serving as an OWCP medical adviser. Dr. Berman used the
physical findings of Dr. Platto, an attending Board-certified physical medicine and rehabilitation
physician.
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a two percent permanent impairment of his right leg, for which he received a
schedule award.
On appeal, counsel argued that appellant had a 10 percent permanent impairment of his
right leg given that Dr. Platto found such an impairment on February 21, 2013 due to limited right
knee motion, as calculated under Section 16.7 of the A.M.A., Guides. Chapter 16 of the sixth
edition of the A.M.A., Guides, pertaining to the lower extremities, provides that diagnosis-based
impairment is the primary method of calculation for the lower limb. The range of motion rating
method is primarily used as a physical examination adjustment factor and is only used to
determine actual impairment values when it is not possible to otherwise define impairment under
the diagnosis-based rating method.24 The Board notes that Dr. Platto did not adequately explain
why it was appropriate to use the range of motion rating method in this case. Moreover, it was
not appropriate for Dr. Platto to use the fifth edition of the A.M.A., Guides when he derived
grade modifiers because the sixth edition of the A.M.A., Guides was in effect as the time of his
February 21, 2013 evaluation.25

20

Section 16.7 of Chapter 16 (entitled “Range of Motion Impairment”) provides, “This section is to be used as a
stand-alone rating when other grids refer you to this section or no other diagnosis-based sections of this chapter are
applicable for impairment rating of a condition.” Id. at 543.
21

Russell F. Polhemus, 32 ECAB 1066 (1981).

22

See Robert F. Hart, 36 ECAB 186 (1984).

23

Appellant had previously undergone right knee surgery, anterior cruciate ligament repair and medial
meniscectomy in April 1997, meniscectomy in April 2001, anterior cruciate cadaver repair and cadaver meniscus
replacement in March 2002 and medial meniscectomy and microfracture surgery in December 2003.
24

See supra notes 15 through 20.

25

See supra note 7.

6

In determining that appellant had a two percent permanent impairment of his right leg,
Dr. Berman stated that, under Table 16-3 on page 509 of the sixth edition of the A.M.A., Guides,
he should be rated under the diagnosis-based condition of “Strain; tendinitis” of the right knee.
He found that this condition fell under class 1 and had a default value of two percent of the right
leg.26 The Board notes, however, that Dr. Berman did not adequately explain why he chose to
rate appellant’s right knee impairment under the diagnosis-based condition of “Strain; tendinitis”
given that appellant’s claim had been accepted for aggravation of joint effusion of his right knee.
Dr. Berman advised that appellant’s accepted condition was “based upon a knee sprain,” but his
claim was not accepted for this particular medical condition. Under the A.M.A., Guides,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.27 Dr. Berman noted that a
claimant fell under class 1 for “Strain; tendinitis” on Table 16-3 for “palpatory findings and/or
radiologic findings,” but he did not explain how appellant’s specific findings met this
requirement. It is also noted that appellant had multiple right knee surgeries prior to sustaining
the accepted condition of aggravation of joint effusion of his right knee. In determining the
amount of a schedule award for a member of the body that sustained an employment-related
permanent impairment, preexisting impairments of the body are to be included.28
Therefore, the case shall be remanded to OWCP in order to request that Dr. Berman or, if
appropriate, another medical specialist, provide additional clarification of these matters pertaining
to appellant’s right knee impairment.29 After this development directed by the Board, OWCP shall
issue an appropriate decision regarding appellant’s entitlement to schedule award compensation.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a two percent permanent impairment of his right leg, for which he received a
schedule award.

26

Dr. Berman further indicated that, under Table 16-6, Table 16-7 and Table 16-8 on pages 516 through 519 of
the sixth edition, appellant had a grade modifier 1 for functional history adjustment, grade modifier 1 for physical
examination and grade modifier 1 for clinical studies. He stated that application of the net adjustment formula
meant that there was no movement from the default value of two percent for appellant’s right leg and concluded that
the total impairment of his right leg was two percent.
27

See supra note 10.

28

See supra notes 11 through 14.

29

On appeal, counsel argued that appellant had a 10 percent permanent impairment of his right leg given that
Dr. Platto found such an impairment on February 21, 2013 due to limited right knee motion, as calculated under
Section 16.7 of the A.M.A., Guides. Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower
extremities, provides that diagnosis-based impairment is the primary method of calculation for the lower limb. The
range of motion rating method is primarily used as a physical examination adjustment factor and is only used to
determine actual impairment values when it is not possible to otherwise define impairment under the diagnosisbased rating method. The Board notes that Dr. Platto did not adequately explain why it was appropriate to use the
range of motion rating method in this case. Moreover, it was not appropriate for Dr. Platto to use the fifth edition of
the A.M.A., Guides when he derived grade modifiers because the sixth edition of the A.M.A., Guides was in effect
at the time of his February 21, 2013 evaluation.

7

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: September 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Downers Grove, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1210
Issued: November 20, 2019

Case Submitted on the Record

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

JURISDICTION
On May 7, 2019 appellant filed a timely appeal from a November 9, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated July 25, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 9, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 29, 2018 appellant, then a 48-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that on May 21, 2018 he sustained head, back, and left side injuries when
the vehicle he was operating hydroplaned, spun, struck a guardrail, and flipped while in the
performance of duty. On the reverse side of the claim form, the employing establishment indicated
that appellant was in the performance of duty at the time of the claimed employment incident.
In a development letter dated June 15, 2018, OWCP advised appellant of the deficiencies
of his claim, informed him of the medical evidence needed to establish his claim, and afforded him
30 days to submit the necessary evidence.
In a report dated May 21, 2018, Dr. John S. Groch, a Board-certified diagnostic radiologist,
administered a computerized tomography (CT) scan of appellant’s head, neck, and cervical spine.
A CT scan of his head revealed no acute fracture. A CT scan of his cervical spine revealed no
acute fracture or dislocation, mild-to-moderate degenerative changes contributing to mild spinal
stenosis, and scattered mild/moderate bilateral foraminal narrowing in the cervical spine.
In a report dated May 21, 2018, Dr. Jon P. Strotkamp, an osteopath Board-certified in
emergency medicine, related that after the accident appellant was seen in the hospital emergency
room. Appellant was able to ambulate, denied loss of consciousness, and reported pain on the side
of his head and in his back. He related a primary impression of “[motor vehicle accident]
restrained driver.”
By decision dated July 25, 2018, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish that his medical condition was causally
related to the accepted May 21, 2018 employment incident.
On August 13, 2018 appellant requested reconsideration of OWCP’s July 25, 2018
decision. Along with his request, he submitted duplicate copies of the May 21, 2018 reports from
Dr. Groch and Dr. Strotkamp, previously submitted.
By decision dated November 9, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
3
This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

2

limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP;
or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.6
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his timely application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, and he did not advance a new and
relevant legal argument not previously considered.8 Consequently, he is not entitled to review of
the merits of his claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
The Board notes that the underlying issue in this case was whether appellant’s medical
condition was causally related to the accepted May 21, 2018 employment incident. That is a
medical issue which must be addressed by relevant medical evidence not previously considered.9
In support of his request for reconsideration appellant submitted duplicative copies of Dr. Groch’s
May 21, 2018 diagnostic report and Dr. Strotkamp’s May 21, 2018 medical report. Evidence
which repeats or duplicates evidence already in the case record has no evidentiary value and does
not constitute a basis for reopening a case.10 In this case, appellant failed to submit relevant and

4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

R.S., Docket No. 19-0312 (issued June 18, 2019); T.B., Docket No. 18-1214 (issued January 29, 2019); C.B.,
Docket No. 08-1583 (issued December 9, 2008).
9

R.S., id.; D.L., Docket No. 16-0342 (issued July 26, 2016).

10

R.S., id.; D.T., Docket No. 17-1734 (issued January 18, 2018); Richard Yadron, 57 ECAB 207 (2005).

3

pertinent new evidence regarding causal relationship.11 Thus, he is not entitled to a review of the
merits of his claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).12
Accordingly, appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2019
Washington, DC

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

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

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

11

P.C., Docket No. 18-1703 (issued March 22, 2019); M.H., Docket No. 13-2051 (issued February 21, 2014).

12

Id.

13
See R.S., supra note 8; D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued
August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Auburn, WA, Employer
__________________________________________

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

Docket No. 17-0405
Issued: January 25, 2019

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 December 14, 2016 appellant, through counsel, filed a timely appeal from an
October 19, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a).
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 7, 2014 appellant, then a 35-year-old sales associate, filed a traumatic injury
claim (Form CA-1) alleging that on April 4, 2014 she strained her left shoulder when lifting a
full tub of flats while in the performance of duty. OWCP accepted the claim on April 28, 2014
for left shoulder muscle spasm. On July 1, 2014 it expanded acceptance of the claim to include
left shoulder closed acromioclavicular dislocation, left superior glenoid labrum lesion, and other
affections of the left shoulder not otherwise classified.
Appellant submitted claims for compensation (Form CA-7) for disability from work
commencing June 4, 2014. The time analysis forms (Form CA-7a) indicated that she was
working intermittent part-time hours. Appellant stopped work on August 9, 2014. On
October 3, 2014 she underwent left shoulder arthroscopic surgery. Appellant began receiving
wage-loss compensation on the periodic rolls commencing September 21, 2014.
The record indicates that on February 9, 2015 the employing establishment offered
appellant a temporary, four-hour per day, light-duty job as a sales solution team member, which
required intermittent use of a telephone and intermittent light typing. Other physical
requirements of the modified employment position were provided. A statement of accepted facts
(SOAF) dated September 3, 2015, indicates that appellant accepted that light-duty job and
returned to part-time work for four hours per day beginning February 17, 2015.3 She thereafter
filed Form CA-7 claims for compensation for the remaining four hours of wage loss each day.
In a letter dated March 26, 2015, Dr. Nha Ton, an osteopath, explained that appellant had
been excused from work for the period March 19 to 26, 2015, but was cleared to return to work
on March 27, 2015. In a report dated April 21, 2015, he provided a history and results on
examination. Dr. Ton reported that appellant had left shoulder pain with intermittent numbness,
and would decrease her work to four days per week at four hours per day. Appellant stopped
work again on April 29, 2015, but later returned to part-time work on intermittent dates, working
up to four hours per day.
By report dated May 27, 2015, Dr. Ton indicated that appellant reported that her left
shoulder had been getting worse and she had to leave work the previous day due to shoulder
pain. He opined that she could only work light duty for four hours a day, three days per week.
On September 3, 2015 OWCP referred appellant along with a SOAF and the medical
record to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for a second opinion
examination to determine the nature and status of her left shoulder condition.
Appellant stopped work again on October 7, 2015 as Dr. Ton recommended time off
from work due to clicking and popping with movement, bicep pain, and some numbness over the
left deltoid area. OWCP continued to pay her wage-loss compensation at the established four
hours per day on the supplemental rolls.

3
A fiscal note dated March 2, 2015 reveals that appellant continued to receive wage-loss compensation on the
periodic rolls through March 7, 2015, which created an overpayment of compensation in the amount of $1,827.35.

2

In a report dated October 20, 2015, Dr. Dinenberg provided a history and results on
examination. He diagnosed chronic left shoulder impingement, causally related to the April 4,
2014 employment injury and noted objective findings including diminished range of motion of
the left shoulder secondary to pain. Dr. Dinenberg did not consider further surgical treatment to
be necessary as a result of the accepted employment injury. He found that appellant was at
maximum medical improvement (MMI) for her left shoulder condition. Dr. Dinenberg opined
that she could work full time in the sales solution team position, without restrictions. In an
attached work capacity evaluation form (Form OWCP-5c) he assigned restrictions for the left
shoulder for reaching above the shoulder level, and for repetitive pushing, pulling, and lifting up
to 10 pounds for three hours per day.
On November 5, 2015 the employing establishment offered appellant a temporary fulltime, light-duty position as a sales solution team member. The job offer indicated that the
employment position was available beginning November 9, 2015, and that it was subject to
revision based on changes in appellant’s physician restrictions or the availability of adequate
work.
On November 9, 2015 Dr. Ton opined that appellant should remain off work until
November 16, 2015 due to her left shoulder injury.
On November 12, 2015 OWCP issued appellant a notice of proposed termination. It
noted that it had been advised that she had not reported for the job assignment offered by the
employing establishment on November 5, 2015. Appellant was advised that OWCP found that
the job was within the work restrictions provided by Dr. Dinenberg in his second opinion
examination. OWCP noted that her family physician, Dr. Ton, had not discussed a reason for
reducing her work hours or placing her off work. It indicated that its procedures held that a
temporary light-duty job may be provided when a claimant has stable and had well-defined or
permanent restrictions. OWCP cited to 20 C.F.R. § 10.500(a) and asserted that a claimant who
declines a temporary light-duty job assignment is not entitled to compensation for the duration of
the assignment. It further advised appellant “If you decline to report to the temporary
light[-]duty assignment on a full-time basis and you fail to demonstrate that the declination is
justified (within the allotted 30 days), your right to wage[-]loss compensation will be terminated
indefinitely since this light[-]duty assignment has no projected end date. [Appellant’s]
entitlement to medical benefits or schedule award will not be affected by this determination.”
Beginning November 27, 2015, appellant filed Form CA-7 claims for wage-loss
compensation for total disability from work from November 16 through December 25, 2015. In
support of her claims, she filed additional medical evidence including a November 19, 2015 note
from Dr. Ton, wherein he contended that her absences from November 16 to 23, 2015 should be
excused due to left shoulder pain. In a note dated November 23, 2015, appellant opined that she
should remain off work on December 24, 2015.4

4
Appellant remained on the supplemental rolls through December 25, 2015, with payment for 40 hours of lost
time for the period December 14 through 25, 2015.

3

In a report dated January 4, 2016, Dr. Ton noted appellant’s job offer and released her to
light-duty work from January 4 through 10, 2016 and then full-duty work starting on
January 11, 2016.
By decision dated January 11, 2016, OWCP terminated appellant’s entitlement to wageloss compensation, effective January 11, 2016.5 It explained that the termination was due to her
failure to accept the November 5, 2015 temporary light-duty offer.
On January 19, 2016 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on August 11, 2016. During the hearing, appellant
asserted that she had accepted the job on January 11, 2016. She indicated, however, that she was
told the job was no longer available. Appellant further noted that she again returned to work as
of February 9, 2016 at a new duty station after an additional offer of work was made by the
employing establishment.
By decision dated October 19, 2016, OWCP’s hearing representative affirmed the
January 11, 2016 decision. The hearing representative found that OWCP had properly
terminated appellant’s entitlement to wage-loss compensation, effective January 11, 2016,
pursuant to 20 C.F.R. § 10.500(a).
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.6 Section 10.500(a) states that appellant is
only entitled to wage-loss compensation for the periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.7
OWCP procedures note that 20 C.F.R. § 10.500 provides the basic rules governing
continuing receipt of compensation benefits and return to work as follows:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him
or her from earning the wages earned before the work-related injury. For
example, an employee is not entitled to compensation for any wage-loss claimed
on a Form CA-7 to the extent that evidence contemporaneous with the period
claimed on a Form CA-7 establishes that an employee had medical work
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
5

OWCP initially issued a decision dated December 23, 2015 that terminated wage-loss compensation effective
December 28, 2015. However, it subsequently determined that appeal rights had not been properly included with
that decision.
6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

7

20 C.F.R. § 10.500(a).

4

available. Similarly, an employee receiving continuing periodic payments for
disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing establishment had
offered, in accordance with OWCP procedures, a temporary light-duty assignment
within the employee’s work restrictions. (The penalty provision of 5 U.S.C.
8106(c)(2) will not be imposed on such assignments under this paragraph).”8
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a) as the medical
evidence of record shows that she could in fact perform the light-duty assignment offered by the
employing establishment on November 5, 2015.
The physical requirements of the offered temporary light-duty assignment were within
appellant’s medical restrictions provided by Dr. Dinenberg, in his capacity as a second opinion
referral physician.
In his report dated October 20, 2015, Dr. Dinenberg noted appellant’s history of injury
and treatment and opined that she was at MMI for her left shoulder condition and was not in
need of additional surgical treatment. He further opined that she was capable of working full
time in the temporary light-duty sales solution team position without restrictions after reviewing
the position description provided to him for review. Dr. Dinenberg did note that appellant
required work restrictions for her left shoulder, but they did not impact her ability to perform the
full-time position.
The evidence establishes temporary light-duty work within the restrictions set by
Dr. Dinenberg was available as of November 5, 2015 and that appellant was notified in writing
on November 5, 2015 of the available job which was within her work restrictions.9
Furthermore, appellant’s own treating physician, Dr. Ton, in a January 4, 2016 note,
released appellant to full-duty employment starting on January 11, 2016, which is the date that
OWCP used as the effective date of the termination. There is no contemporaneous medical
evidence of record which restricted appellant from returning to work in the offered temporary
light-duty position of a sales solution team member at the time of the termination pursuant to 20
C.F.R. § 10.500(a).
Thus, the Board finds that OWCP met its burden of proof to terminate appellant’s
entitlement to compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a).

8

Id.; see also T.F., 16-0851 (issued June 19, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims, Job
Offers and Return to Work, Chapter 2.814.2(c)(a) (June 2013).
9

See S.M., Docket No. 15-1667 (issued April 20, 2016).

5

On appeal, counsel contends that the decision of October 19, 2016 is contrary to fact and
law. For the reasons set forth above the Board finds that, under the provisions of 20 C.F.R.
§ 10.500(a), OWCP properly terminated appellant’s compensation.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation, effective January 11, 2016, pursuant to 20 C.F.R. § 10.500(a).
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.10
Issued: January 25, 2019
Washington, DC

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

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

10
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Fort Wayne, IN, Employer
__________________________________________

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

Docket No. 09-183
Issued: July 9, 2009

Case Submitted on the Record

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

JURISDICTION
On October 27, 2008 appellant filed a timely appeal of the August 8, 2008 merit decision
of the Office of Workers’ Compensation Programs’ hearing representative, affirming a
January 7, 2008 Office decision, finding that her eye condition was not causally related to her
accepted July 5, 2007 employment injuries. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an eye condition as a consequence of her
accepted July 5, 2007 employment injuries.
FACTUAL HISTORY
On July 5, 2007 appellant, then a 60-year-old mail handler, filed a traumatic injury claim
alleging that she sustained cuts to her head on that date. She was unloading a truck when it
moved forward and she fell to the ground. Appellant stopped work on the date of injury and
returned to full-time limited-duty work on July 9, 2007.

Medical records covering the period July 6 through 17, 2007 indicated that appellant
sustained contusions, a right wrist sprain and an open wound of the scalp. In a July 31, 2007
medical report, Dr. Denise E. Blad, an attending Board-certified family practitioner, noted
appellant’s complaints which included not being able to see as well since the July 5, 2007 work
incident. She provided her findings on physical examination and diagnosed unspecified anxiety
and dental conditions and visual disturbance and a right wrist sprain.
By letter dated August 13, 2007, the Office accepted appellant’s claim for right wrist
sprain, scalp laceration, multiple contusions and exacerbation of preexisting right ring finger
trigger digit.
In a form dated August 9, 2007, Dr. Philip H. O’Donnell, a Board-certified
ophthalmologist, requested authorization to treat appellant for vitreous floaters. He stated that
floaters may become more evident after a head injury.
In a September 7, 2007 letter, the Office accepted appellant’s claim for bilateral ankle
contusions.
By letter dated October 23, 2007, the Office advised appellant that Dr. O’Donnell’s
August 9, 2007 opinion was insufficient to establish that she sustained an eye condition causally
related to her accepted July 5, 2007 employment injuries. It requested a rationalized medical
report from an attending physician which explained how the accepted employment incident
caused or influenced the claimed condition.
In an October 26, 2007 report, Dr. Blad reviewed a history of appellant’s accepted July 5,
2007 employment injuries and medical treatment. She reiterated her prior statement that
appellant could not see out of her right eye as well since the accepted employment injury.
Dr. Blad stated that she sustained contusions of the left shoulder, right thigh, right and left
posterior hip, left knee, bilateral feet and left lateral malleolus, right hip abrasion and
ecchymosis. She released appellant to her regular work duties on October 25, 2007.
By decision dated January 7, 2008, the Office denied appellant’s claim. It found the
medical evidence of record insufficient to establish that appellant sustained an eye condition
causally related to her accepted July 5, 2007 employment injuries. On January 22, 2008
appellant requested an oral hearing before an Office hearing representative.
Following a May 22, 2008 telephonic hearing, appellant submitted an unsigned
physician’s services statement dated July 31, 2007 which indicated that she sustained an
unspecified visual disturbance.
By decision dated August 8, 2008, an Office hearing representative affirmed the Office’s
January 7, 2008 decision. The hearing representative found the evidence submitted by appellant
insufficient to establish that she sustained an eye condition as a consequence of her accepted
July 5, 2007 employment injuries.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of her duty.1 It is
an accepted principle of workers’ compensation law that when the primary injury is shown to
have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent,
intervening cause attributable to the employee’s own intentional conduct.2
ANALYSIS
The Office accepted that appellant sustained a right wrist sprain, scalp laceration,
multiple contusions, exacerbation of preexisting right ring finger trigger digit and bilateral ankle
contusions as a result of the employment-related July 5, 2007 incident. Appellant contends that
she also sustained an eye condition as a result of the accepted employment injuries.
Dr. O’Donnell’s August 9, 2007 request for authorization stated that appellant sustained
vitreous floaters. His opinion that floaters “may” become more evident after a head injury is
speculative and equivocal in nature and thus of little probative value.3 Dr. O’Donnell did not
provide adequate medical rationale in support of his conclusion. He did not describe the
development of appellant’s condition in any detail or sufficiently explain how the July 5, 2007
employment injuries caused the claimed eye condition. Dr. O’Donnell only stated summarily
that appellant’s eye condition was causally related to a head injury. The Board, therefore, finds
that his report is insufficient to establish that appellant sustained an eye condition causally
related to her accepted employment injuries.
Dr. Blad’s July 31 and October 26, 2007 reports stated that appellant sustained
unspecified anxiety and dental conditions and visual disturbance, a right wrist sprain, contusions
of the left shoulder, right thigh, right and left posterior hip, left knee, bilateral feet and left lateral
malleolus, right hip abrasion and ecchymosis. She stated that appellant complained about not
being able to see out of her right eye as well since the July 5, 2007 employment incident.
However, Dr. Blad did not provide a diagnosis of an eye condition. Further, she did not address
whether the diagnosed eye condition was causally related to the accepted employment injuries.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.4 The Board finds that Dr. Blad’s reports do not establish
a consequential relationship between appellant’s eye condition and her accepted employment
injuries.

1

5 U.S.C. § 8102(a).

2

Albert F. Ranieri, 55 ECAB 598 (2004).

3

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); D.D., 57 ECAB 734 (2006);
Cecelia M. Corley, 56 ECAB 662 (2005).
4

Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

3

An unsigned July 31, 2007 physician’s services statement indicated that appellant
sustained an unspecified visual disturbance. The Board has held that an unsigned report with no
adequate indication that it was signed by a physician is not considered probative medical
evidence.5 The July 31, 2007 statement lacks probative medical value because it was unsigned,
did not provide a history of injury and did not provide a medical opinion addressing whether
appellant sustained an eye condition causally related to her accepted employment injuries. The
Board finds that this evidence is insufficient to establish that appellant sustained an eye condition
as a result of her July 5, 2007 employment injuries.
The Board finds that the record does not contain rationalized medical evidence to
establish that appellant sustained an eye condition as a result of her July 5, 2007 employment
injuries. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an eye condition
as a consequence of her July 5, 2007 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the August 8, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: July 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
5

See R.M., 59 ECAB ___ (Docket No. 08-734, issued September 5, 2008) (the Board has found that reports
lacking proper identification, such as unsigned treatment notes, do not constitute probative medical evidence);
Richard Williams, 55 ECAB 343 (2004) (medical reports lacking proper identification cannot be considered as
probative evidence in support of a claim).

4


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

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1237
Issued: September 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 15, 2012 appellant, through her attorney, filed a timely appeal from the
December 30, 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 met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 2, 2011.

1
2

5 U.S.C. §§ 8101-8193.

On appeal, counsel also argued that OWCP improperly handled a back pay matter from 2008 and 2009, i.e., a
period prior to the June 2, 2011 termination of compensation. While the record contains an August 8, 2011 OWCP
decision regarding this matter, the decision is not within the Board’s jurisdiction is not currently before the Board.
See 20 C.F.R. § 503(e).

FACTUAL HISTORY
OWCP accepted that on November 12, 2008 appellant, then a 50-year-old clerk,
sustained a head laceration due to being struck by an opening door at work. It expanded the
accepted conditions to include head laceration, postconcussion syndrome and neck sprain.
Appellant stopped work on November 12, 2008 and alternated between periods of total disability
and working on a part-time basis. She filed wage loss and leave buyback claims for the work
stoppages, but OWCP denied the claims and she did not receive any wage-loss compensation or
leave buyback in connection with these accepted work injuries.3 Appellant received medical
expenses necessitated by the accepted work injuries.
In reports dated January 8 and 15, 2009, Dr. Mario G. Alinea, Jr., an attending Boardcertified occupational medicine physician, stated that appellant continued to have disabling
residuals of her work-related conditions of postconcussion syndrome and neck sprain.
OWCP referred appellant for a second opinion evaluation to determine if she continued
to have residuals of her work injuries. Appellant was referred to Dr. Joan Sullivan, a Boardcertified orthopedic surgeon, and Dr. Edward G. DeVita, a Board-certified neurologist.
In a March 24, 2009 report, Dr. Sullivan stated that there was an unremarkable
examination and diagnosed closed-head injury, with comments to defer to neurology, constant
headaches, again deferred to neurology and neck strain administratively accepted and resolved.
Other than pain behavior and some voluntary reduction of motion on examination, there were no
orthopedic findings to support appellant’s ongoing complaints. Dr. Sullivan stated that the
subjective complaints were greatly outweighed by any objective findings and noted that a
neurologist was needed to address the other issues. She stated that there was no disability with
reference to the neck.
In an April 1, 2009 report, Dr. DeVita listed appellant’s main complaint as headaches and
that she felt her memory was worsening. He noted that the neurological examination of
appellant was normal. Appellant’s conversational mental status evaluation was normal with
excellent recall of events and no memory abnormalities were detected. She had some
dysesthesias of the right side of her face, splitting nonphysiologically. Palpation and visual
inspection of the calvarium was normal with tenderness on the right side. Dr. DeVita stated that
appellant’s neurological examination was dominated by nonphysiologic findings and pain
behavior. He found that she had no neurologic diagnosis as there were no objective examination
findings. Dr. DeVita stated that the degree of injury did not correlate with appellant’s
complaints, in particular with regards to cognitive/memory complaints.
In a November 3, 2009 letter, OWCP advised appellant that it proposed to terminate her
compensation benefits on the grounds that she ceased to have residuals of her accepted work

3

OWCP denied appellant’s claims for wage-loss compensation and leave buyback in decisions dated May 20 to
July 24, 2009 and August 8, 2011. These decisions are not currently within the Board’s jurisdiction and the
decisions are not currently before the Board.

2

conditions.4 It stated that the proposed termination action was based on the opinions of
Dr. Sullivan and Dr. DeVita. OWCP provided appellant 30 days to submit evidence and
argument challenging the proposed termination.
Appellant submitted additional status reports and work restriction forms from her
attending physicians.
In a December 10, 2009 decision, OWCP terminated appellant’s compensation benefits
effective December 10, 2009.
Appellant disagreed with the decision and requested a review of the written record. In a
July 2, 2010 decision, OWCP’s hearing representative remanded the case finding that additional
clarification was needed from the second opinion specialists. She found that there were errors in
the questions presented to the second opinion physicians and that the physicians needed to
review certain diagnostic test reports.
On remand, OWCP updated the questions presented to Dr. Sullivan and Dr. DeVita and
asked them to review the diagnostic reports. Additional opinions were requested from the
second opinion physicians. In a November 4, 2010 report, Dr. Sullivan noted that it was
inappropriate for her to comment on Dr. DeVita’s evaluation. In a November 8, 2010 report,
Dr. DeVita noted that he had reviewed the diagnostic testing and subsequent medical records and
his opinion remained unchanged after having reviewed these records. He advised that appellant
suffered no alteration of consciousness and, therefore, there was no basis for her injury from a
neurologic point of view. Dr. DeVita reiterated that he found no memory abnormalities but that
she exhibited significant pain behavior and nonphysiologic findings.
In a December 6, 2010 decision, OWCP terminated appellant’s wage-loss and medical
benefits effective December 6, 2010.
In a January 21, 2011 brief, counsel argued that the opinions of Dr. Sullivan and
Dr. DeVita did not support the termination action.
By decision dated March 9, 2011, OWCP’s hearing representative set aside the
termination of benefits and remanded the case for further medical development. He noted the
treating physicians had diagnosed cervical disc bulges and a tear, postconcussive syndrome, neck
strain, headaches, cognitive dysfunction and a depressive disorder. The hearing representative
found that the opinions of Dr. Sullivan and Dr. DeVita did not carry the weight of the medical
evidence. The medical reports from the attending physicians were not well rationalized, but
OWCP had the burden to establish that the accepted conditions had resolved. OWCP’s hearing
representative also found that a possible psychological component had arisen. He remanded the
case for new second-opinion examinations in the fields of neurology, orthopedics and psychiatry.
OWCP was to ask the neurologist and orthopedist whether the accepted conditions had resolved,
and if so, by what date. The neurologist was to be asked if there was evidence of a continuing

4

As appellant did not receive wage-loss compensation due to the accepted work injuries, OWCP effectively
proposed to terminate her future entitlement to wage-loss compensation due to these injuries.

3

postconcussive syndrome and for findings supporting such a condition. The psychiatrist was to
be asked if appellant sustained a work-related psychiatric condition.
OWCP prepared a new statement of accepted facts and referred appellant, together with
the medical records and the statement of accepted facts, to Dr. John Wendt, a Board-certified
neurologist, Dr. Eric Puttler, a Board-certified orthopedic surgeon, and Dr. Gary R. Hudak, a
Board-certified psychiatrist.
On May 5, 2011 Dr. Wendt and Dr. Puttler performed a joint examination of appellant’s
orthopedic and neurologic systems. A Korean-English interpreter was present at the
examination.
In a joint May 5, 2011 report, the physicians provided an extensive review of appellant’s
medical history, including summaries of the physical examination reports and diagnostic studies
of record. Dr. Puttler performed the orthopedic evaluation, noting that she was visibly frustrated
and exhibited consistent effort-related variability in her examination. He stated that appellant
had no obvious splinting or guarding of the cervical spine or shoulders. Appellant had no
tenderness or deformity along the cervical spine or upper thoracic spine and there was no muscle
spasm. Dr. Puttler noted that she complained of diffuse tenderness in the trapezius region
bilaterally. Appellant had a negative Spurling’s sign, but axial compression of the neck caused
her some discomfort in the head primarily. She had negative impingement signs with no
tenderness along the course of the biceps tendon.
Dr. Wendt performed a neurologic evaluation and stated that appellant had an “excellent
general found of knowledge.” He noted that her immediate recall of three items was
disproportionately impaired initially, but she was able to recall the items at a later time.
Dr. Wendt stated that appellant followed general commands adequately in that her speech was
normal and fluent and affect was appropriate. Spurling’s test, Tinel’s sign at the wrists and
elbows and Phalen’s test were normal. Examination of the head and the motor examination were
normal. Appellant did not know if touch and pin were symmetric in the upper extremities but the
remainder of the sensory examination was normal. Dr. Wendt found that her gait was normal
with a negative Romberg’s test.
In the conclusion portion of the report, the physicians diagnosed a closed-head injury
without laceration and without loss of consciousness, “doubt actual postconcussive syndrome,”
post-traumatic headaches “that initially fulfilled diagnosis for post-traumatic migraine,” cervical
strain (injury related), memory problems “that were” multifactoral and, at this point, not injury
related,” nonspecific white matter changes noted on head magnetic resonance imaging (MRI)
scan likely related to a history of hypertension, mild cervical degenerative disc disease
(preexisting and not injury related) and a history of depression and anxiety, likely preexisting,
“with unclear relationship to current injury, referred to psychiatry.” The physicians stated that
the closed-head injury, post-traumatic headaches and cervical strain were due to the work injury.
They found no objective abnormalities on examination and noted nonorganic features “including
inordinate difficulty with immediate recall, with subsequent better remote memory in the face of
very precise history going back to the time of injury without loss of consciousness,” which did
not reflect a true postconcussive syndrome, but rather an initial post-traumatic migraine. The
physicians stated that the cervical strain diagnosis was injury related with cervical degenerative

4

disc disease, preexisting and not injury related. The cervical strain had resolved by the time of
Dr. Sullivan’s examination and the accepted postconcussive syndrome and head laceration
resolved by the time of Dr. DeVita’s April 2009 evaluation. The physicians stated that there was
no aggravation of any preexisting condition and found that appellant could work full duty on a
full-time basis. They noted, “All injury-related conditions are objectively fixed and stable and
considered resolved.”
In a May 3, 2011 report, Dr. Hudak reported the findings of his psychiatric examination.
A Korean-English interpreter also was present. Dr. Hudak stated that appellant answered his
questions on her own with little use of the interpreter. Appellant’s affect was appropriate on
examination. She had no evidence of psychomotor problems and there was no evidence of
significant mental distractibility or psychotic symptoms. Appellant stated that she was worried
about her condition and that she was concerned about returning headaches if she worked too
hard. During her workday break, she would lie down to avoid any postconcussive symptoms,
but noted that these symptoms had abated. Dr. Hudak stated that appellant’s memory and
concentration were intact without mental distractibility. Appellant was oriented to person, place,
time and situation. She was able to complete serial sevens without error and was able to recall
three objects after five minutes of distracting menial tasks. Dr. Hudak acknowledged the
accepted diagnosis of postconcussive syndrome but found that it had resolved. He stated that
there were no other diagnoses after the examination. Dr. Hudak also stated that there were no
restrictions or impairment that would preclude appellant from returning to full duty on a full-time
basis.
Appellant submitted a number of brief reports from attending physicians, including
treatment notes and form reports advising that she could only perform light-duty work. In an
April 20, 2011 report, Dr. Alinea stated, “Her work status is eight hours a day but could not
tolerate so wants to go back to six hours.” The reports did not provide a rationalized medical
opinion on whether appellant had disability or needed medical treatment due to residuals of her
accepted work injuries.
On June 2, 2011 OWCP terminated appellant’s wage-loss and medical benefits effective
that date. It found that the weight of the medical evidence rested with the well-rationalized
opinions of Drs. Wendt, Puttler and Hudak. OWCP found that the reports of appellant’s
attending physicians, including Dr. Alinea, did not provide adequate medical rationale showing
that she still had residuals of her accepted work injuries.
Appellant requested a hearing before an OWCP hearing representative. Treatment notes
were received from the attending physicians, most of which duplicated those of record. In an
August 4, 2011 report, Dr. Alinea stated that appellant was seeing other specialists under her
own health insurance “as I am unclear if all the symptoms are due to the injury three years ago.”
None of the reports addressed whether appellant continued to have residuals of her accepted
work injuries.
On October 13, 2011 a telephonic hearing was held with an OWCP hearing
representative. Appellant appeared with her counsel and testified on her own behalf. A KoreanEnglish interpreter was present during the hearing. Appellant stated that she told Dr. Hudak that
she was having memory problems and described physical problems which she believed were

5

work related. She noted that one of the physicians stated that there was no laceration of the head
when she was hit by the door; however, her head was bleeding after she was hit. Appellant
described the medical care that she received for her injuries.
In a December 30, 2011 decision, OWCP’s hearing representative affirmed the June 2,
2011 termination decision. She found that the opinions of Dr. Puttler, Dr. Wendt and Dr. Hudak
were well rationalized and supported the termination of compensation benefits. The hearing
representative noted that the reports of attending physicians, including those of Dr. Alinea, did
not establish that she had continuing work-related residuals.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
ANALYSIS
OWCP accepted that on November 12, 2008 appellant sustained postconcussion
syndrome, head laceration and neck sprain due to being hit in her head by an opening door at
work. It terminated her compensation benefits effective June 2, 2011.
The Board finds that OWCP obtained sufficient medical evidence to support its
termination of appellant’s compensation benefits effective June 2, 2011. OWCP properly based
its decision on the May 2011 opinions of three second-opinion physicians, Dr. Wendt, a Boardcertified neurologist, Dr. Puttler, a Board-certified neurologist, and Dr. Hudak, a Board-certified
psychiatrist.
The Board has carefully reviewed the opinions of the second-opinion physicians and
finds that they have reliability, probative value and convincing quality with respect to the stated
conclusions regarding the relevant issue of the present case. The physicians provided a thorough
factual and medical history and accurately summarized the relevant medical evidence.8 They
provided medical rationale for their opinions. Appellant did not exhibit objective signs of the
accepted work injuries. Rather, a number of aspects of her presentation were subjective in nature
and not explained by work-related conditions.
In the joint report dated May 5, 2011, Drs. Wendt and Puttler provided an extensive
review of appellant’s medical history, including summaries of the physical examination reports
5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

6

and diagnostic testing findings of record. Upon the orthopedic examination, appellant had no
tenderness or deformity along the cervical spine or upper thoracic spine and there was no muscle
spasm. The neurologic evaluation revealed that she had an “excellent general found of
knowledge.” Appellant followed general commands adequately in that her speech was normal
and fluent and affect was appropriate. Spurling’s test, Tinel’s sign at the wrists and elbows and
Phalen’s test were normal. Examination of the head and the motor examination were normal.
The physicians stated that the closed-head injury, post-traumatic headaches and cervical strain
were related to the employment injury but had since resolved.9 They noted that there were no
objective abnormalities on examination and stated that there were nonorganic features to the
examination which were not work related. The physicians indicated that the cervical strain,
postconcussive syndrome and head laceration would have resolved by early 2009. They stated
that there was no aggravation of any preexisting condition and that appellant could work full
duty on a full-time basis. The physicians noted, “All injury-related conditions are objectively
fixed and stable and considered resolved.”
In a May 3, 2011 report, Dr. Hudak reported the findings of his psychiatric examination.
He stated that appellant’s memory and concentration were intact without mental distractibility.
Appellant was oriented to person, place, time and situation. She was able to complete serial
sevens without error and was able to recall three objects after five minutes of distracting menial
tasks. Dr. Hudak acknowledged the accepted diagnosis of postconcussive syndrome but noted
that it had resolved. He stated there are no other diagnoses after the examination and that there
were no restrictions or impairments that would preclude appellant from returning to full duty on
a full-time basis.
On appeal, counsel argued that the opinions of the second opinion specialists were too
general and without medical rationale. As noted, the Board finds that the reports were highly
detailed and well rationalized with respect to the stated conclusions. Counsel also argued that
OWCP did not consider the reports submitted by appellant’s attending physicians, but a review
of the record establishes that the reports were considered but found to lack probative value.
Appellant submitted a number of brief reports from attending physicians, including treatment
notes and form reports indicating that she could only perform light-duty or part-time work.
Dr. Alinea, an attending Board-certified occupational medicine physician, stated in an April 20,
2011 report, “Her work status is eight hours a day but could not tolerate so wants to go back to
six hours.” These reports did not provide adequate medical opinion addressing appellant’s
disability or need for medical treatment due to residuals of her accepted conclusions. In an
August 4, 2011 report, Dr. Alinea stated that appellant was seeing other specialists under her
own health insurance and was “unclear if all the symptoms are due to the injury three years ago.”
The records from him are speculative in nature and not fully rationalized on continuing disability
or residuals.

9

The Board notes that it was incorrectly stated that appellant did not sustain a laceration on her head on
November 12, 2008, but it is clear from the examination findings that she had long since recovered from this
condition. While it was indicated in one portion of the report that there was doubt about the actual occurrence of
postconcussion syndrome, the physicians appear to accept the occurrence of the condition when the report is viewed
in whole.

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For these reasons, OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 2, 2011.
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 to terminate appellant’s wage-loss
compensation and medical benefits effective June 2, 2011 on the grounds that she had no
residuals of her work injuries after that date.
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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