United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, LARGO POST
OFFICE, Largo, FL, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0204
Issued: October 16, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 4, 2019 appellant, through counsel, filed a timely appeal from a
September 9, 2019 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.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 9, 2019 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $54,910.24, for which he was not at fault, as he
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
age-related retirement benefits for the period June 1, 2008 through June 22, 2019 without an
appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $400.00
every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On April 11, 2008 appellant, then a 61-year-old mail handler, filed a notice of recurrence
of disability (Form CA-2a) alleging that on March 31, 2008 he stopped work because repetitive
lifting, casing, and delivery of mail while in the performance of duty caused increased pain to his
neck and right shoulder.4 He returned to part-time work on April 2, 2008. OWCP converted the
notice of recurrence of disability to a claim for an occupational disease and accepted the claim for
a complete rupture of the right rotator cuff. On September 17, 2008 appellant underwent an OWCP
authorized right shoulder arthroscopy which included subacromial decompression, rotator cuff
repair, proximal humeral resection, distal claviculectomy, and bursectomy. OWCP paid him
appropriate wage-loss compensation on the periodic rolls, effective September 28, 2008.5
A notification of personnel action (Form SF-50) dated April 9, 2009 indicated that
appellant was covered under the Federal Employees Retirement System (FERS).
On June 20, 2019 OWCP received from SSA a June 15, 2019 (FERS)/(SSA) dual benefits
calculation form which indicated that appellant had been in receipt of SSA age-related retirement
benefits since June 1, 2008. The form showed SSA benefit rates with and without a FERS offset.
Beginning June 1, 2008, appellant’s SSA rate with FERS was $1,441.20 and without FERS was
$1,419.80; beginning January 1, 2009, and February 1, and April 2011, appellant’s SSA rate with
FERS was $1,583.80 and without FERS was $1,502.10; beginning May 1, 2011, appellant’s SSA
rate with FERS was $1,999.40 and without FERS was $1,502.10; beginning December 1, 2011,
appellant’s SSA rate with FERS was $2,071.30 and without FERS was $1,556.20; beginning
December 1, 2012, appellant’s SSA rate with FERS was $2,106.50 and without FERS was
$1,582.60; beginning December 1, 2013, appellant’s SSA rate with FERS was $2,138.00 and
without FERS was $1,606.20; beginning December 1, 2014 and December 1, 2015, appellant’s
SSA rate with FERS was $2,174.30 and without FERS was $1,633.60; beginning December 1,
2016, appellant’s SSA rate with FERS was $2,180.70 and without FERS was $1,638.40; beginning
December 1, 2017, appellant’s SSA rate with FERS was $2,224.40 and without FERS was

4

Under OWCP File No. xxxxxx439, the master file number, appellant has an accepted March 17, 2005 traumatic
injury claim for the conditions of right rotator cuff tear, labral tear right shoulder, and acromion impingement, right
shoulder. He returned to work in a limited-duty assignment as a modified letter carrier with lifting restrictions on
January 24, 2006.
5

Effective April 10, 2011, appellant’s wage-loss compensation was reduced based on his wage-earning capacity in
the constructed position of a sales attendant. By decisions dated December 18, 2012 and January 8, 2014, OWCP
denied modification of its loss of wage-earning capacity determination.

2

$1,671.10; and beginning December 1, 2018, appellant’s SSA rate with FERS was $2,286.60 and
without FERS was $1,717.90.
In a letter dated July 26, 2019, OWCP advised appellant that he had been receiving a
prohibited dual benefit. It noted that SSA had confirmed that a portion of his SSA benefits were
attributed to his years of federal service as an employee under the FERS retirement program and
that portion required an offset of his FECA compensation benefits. OWCP indicated that the
adjustment of appellant’s FECA benefits to account for his SSA offset would reflect a new net
compensation amount of $1,583.87. The adjustment was effective June 23, 2019.
On July 26, 2019 OWCP also issued a preliminary determination that appellant received
an overpayment of compensation in the amount of $54,910.24, because he concurrently received
FECA wage-loss compensation benefits and SSA age-related retirement benefits for the period
June 1, 2008 through June 22, 2019. It explained that it had calculated the overpayment of
compensation by determining the difference between his SSA benefit rate with and without FERS
for each period, and then multiplying that amount by the number of days in each period.
The FERS offset calculation worksheet indicated that OWCP utilized a 28-day FERS offset
amount of $150.98 from June 1, 2008 to December 31, 2009; $2,049.68 from January 1, 2009 to
January 31, 2011; $158.91 from February 1 to March 31, 2011; $80.80 from April 1 to 30, 2011;
$3,508.42 from May 1 to November 30, 2011; $6,215.16 from December 1, 2011 to November 30,
2012; $6,304.07 from December 1, 2012 to November 30, 2013; $6,399.13 from December 1,
2013 to November 30, 2014; $6,506.23 from December 1, 2014 to November 30, 2015; $6,527.67
from December 1, 2015 to November 30, 2016; $6,526.23 from December 1, 2016 to
November 30, 2017; $6,657.84 from December 1, 2017 to November 30, 2018; and $3,823.66
from December 1, 2018 to June 22, 2019. Using these figures, OWCP calculated that the total
overpayment amount was $54,910.24.
OWCP further found that appellant was without fault in the creation of the overpayment,
as he was not aware, nor could he reasonably have been aware, that OWCP had paid compensation
incorrectly. It requested that he complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documentation. Additionally, OWCP notified
appellant that, within 30 days of the date of the letter, he could request a final decision based on
the written record or a prerecoupment hearing.
On August 23, 2019 appellant submitted a completed Form OWCP-20. His household
income totaled $4,361.55, including FECA compensation benefits of $1,583.87, SSA benefits of
$2,286.00, and other retirement income of $490.85 and interest of $0.83.
Appellant reported that his monthly expenses included: $550.00 for rent/mortgage;
$400.00 for food; $100.00 for clothing; $850.00 for utilities; $3,400.00 for other expenses; and
monthly payments to creditors of $450.00.6 He indicated that he had available assets of $2,950.13
in a savings account, $44,936.49 in stocks/bonds, $557,598.76 in an Individual Retirement
Account. Appellant indicated that he was diagnosed with Alzheimer’s disease approximately three
years prior and was unaware of the overpayments or that his SSA benefits constituted an annuity.
He also indicated that both he and his wife had a lot of expenses associated with their medical
6

The Board notes that this totals $5,750.00.

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conditions. Appellant further noted that his wife had retired early due to her inability to work from
her medical conditions and that she had relied on the money he was earning from OWCP and
SSA.7 OWCP also received supporting financial documentation from him.
By decision dated September 9, 2019, OWCP finalized the preliminary determination that
appellant had received an overpayment of compensation in the amount of $54,910.24 because the
SSA/FERS offset was not applied to wage-loss compensation payments for the period June 1, 2008
through June 22, 2019. While appellant was without fault in the creation of the overpayment,
OWCP denied waiver of recovery of the overpayment, finding that his monthly income exceeded
his monthly qualifying expenses by $1,116.40, not counting his assets. OWCP noted that the
$3,400.00 miscellaneous expenses claimed was not broken down or clarified as to what those
expenses were and that he was given credit for monthly expenses based on copies of bills and
cancelled checks submitted which were qualifying expenses under the FECA. It required recovery
of the overpayment by deducting $400.00 every 28 days from appellant’s continuing compensation
payments until the debt was paid in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.8 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.9 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled.10
Section 10.421(d) of the FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to federal service of the employee.11 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $54,910.24, for which he was not at fault, as he concurrently
7

A statement was provided which detailed his wife’s medical condition.

8

5 U.S.C. § 8102(a).

9

Id. at § 8116.

10

Id. at § 8129(a).

11
20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
12

FECA Bulletin No. 97-09 (February 3, 1997).

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received FECA wage-loss compensation and SSA age-related retirement benefits for the period
June 1, 2008 through June 22, 2019 without appropriate offset.
In its September 9, 2019 decision, OWCP found that an overpayment of compensation was
created for the period June 1, 2008 through June 22, 2019. The overpayment was based on the
evidence received from SSA with respect to age-related retirement benefits paid to appellant. A
claimant cannot receive both FECA compensation for wage loss and SSA age-related retirement
benefits attributable to federal service for the same period.13 The information provided by SSA
demonstrated that appellant had received SSA age-related retirement benefits that were attributable
to federal service during the period June 1, 2008 through June 22, 2019. OWCP therefore properly
determined that an overpayment was created in this case.
OWCP received documentation from SSA with respect to the specific amount of SSA agerelated retirement benefits that were attributable to federal service. The SSA provided appellant’s
benefit rates with and without FERS for specific periods commencing June 1, 2008 through
June 22, 2019. OWCP provided its calculations for each relevant period based on a FERS offset
calculation worksheet and in its July 26, 2019 preliminary overpayment determination. No
contrary evidence was received.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period June 1, 2008 through June 22, 2019 and finds that an overpayment of compensation in the
amount of $54,910.24 was created.14
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.16 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses

13

5 U.S.C. § 8116(d)(2); see C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).
14
See R.D., Docket No. 19-1598 (issued April 17, 2020); C.M., id.; L.L., Docket No. 18-1103 (issued March 5,
2019); D.C., Docket No. 17-0559 (issued June 21, 2018).
15

5 U.S.C. § 8129(b).

16

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).

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if monthly income does not exceed monthly expenses by more than $50.00.17 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.18 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificates of deposit.19
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.20
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
Appellant provided his current monthly income and expenses in Form OWCP-20 on
August 23, 2019 as well as a summary of his liquid assets. OWCP properly determined that he
listed available assets totaling $47,886.62. This amount exceeds the base asset amount of
$10,300.00 for individuals with a spouse or dependent.22 It was therefore unnecessary for OWCP
to consider whether appellant’s monthly income exceeds his monthly ordinary and necessary
expenses by more than $50.00.23 OWCP therefore properly denied waiver of recovery.
Appellant also has not established that he or his wife detrimentally relied on the
overpayment or that recovery of the overpayment would be against equity and good conscience.
He does not qualify for waiver under the principle of detrimental reliance because, while his wife
may have retired early, he has not shown that the amount by which he was overpaid caused his
wife to retire, to her detriment, and that she would not have otherwise made the decision to retire.24
17

Id. at Chapter 6.400.4.a(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
18

See id. at Chapter 6.400.4.a(2) (September 2018).

19

Id. at Chapter 6.400.4.b(3).

20

20 C.F.R. § 10.437(a)(b).

21

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

22

Supra note 15; see R.D., supra note 14.

23

Id.

24

See H.F., Docket No. 17-0101 (issued September 5, 2017).

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As noted, appellant’s monthly income exceeded his monthly qualifying expenses by more than the
statutory amount. While both he and his wife may have out-of-pocket medical expenses, he has
not submitted evidence detailing such out-of-pocket medical expenses.25 Appellant had the
responsibility to provide sufficient financial information and supporting documentation to
OWCP.26 He has not submitted evidence to substantiate that he would experience severe financial
hardship in attempting to repay the debt. Therefore, OWCP properly found that recovery of the
overpayment would not defeat the purpose of FECA or be against equity and good conscience.27
On appeal counsel contends that appellant’s wife detrimentally relied on the overpayment
when she retired early and, due to the progression of her medical condition, she can no longer
return to work. As a result, appellant’s wife’s reliance on the overpayment monies changed their
financial position for the worse. As discussed above, there is no evidence to support these
contentions.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.28
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate, OWCP explained that the factors set forth at 20 C.F.R.
§ 10.441(a) had been considered to minimize hardship, while liquidating the debt, as appellant had
financial resources sufficient for more than ordinary needs.29 As noted, appellant submitted a
Form OWCP-20 on August 23, 2019 showing that he had available assets of over $47,000.00,
which included $2,950.13 in a savings account and $44,936.49 in stocks/bonds. Thus, OWCP did
not abuse its discretion in setting the rate of recovery.30 The Board therefore finds that OWCP
properly required recovery of the overpayment from appellant’s continuing compensation
payments at the rate of $400.00 every 28 days.

25

See J.A., Docket No. 08-1892 (issued July 16, 2009).

26

See N.J., Docket No. 19-1170 (issued January 10, 2020).

27

See supra note 19; R.D., supra note 14.

28

20 C.F.R. § 10.441(a); see C.M., supra note 13.

29

See D.S., Docket No. 18-1447 (issued July 22, 2019).

30

See T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $54,910.24, for which he was not at fault, as he concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits for the period
June 1, 2008 through June 22, 2019 without an appropriate offset. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment and properly required recovery of
the overpayment by deducting $400.00 every 28 days from appellant’s continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 19-0430
Issued: February 7, 2020

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 December 18, 2018 appellant filed a timely appeal from a November 8, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.3

1
Appellant timely requested oral argument before the Board. By order dated December 10, 2019, the Board
exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the
case record. Order Denying Oral Argument, Docket No. 19-0430 (issued December 10, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the November 8, 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 appellant has met his burden of proof to establish more than five
percent permanent impairment of the right lower extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
On May 1, 2015 appellant, then a 64-year-old tractor trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that on April 27, 2015 he injured his right knee in a motor
vehicle accident (MVA) while in the performance of duty. OWCP accepted the claim for a bucket
handle tear of the right knee medial meniscus. It subsequently expanded acceptance of the claim
to include an acute embolism and thrombosis of the right lower extremity. On October 6, 2016
appellant underwent a right partial medial meniscectomy, a patellar chondral debridement, a
superior medial and lateral plica excision, and a lateral release. He stopped work on October 6,
2016 and received wage-loss compensation for temporary total disability. Appellant returned to
work on March 1, 2017.
An April 7, 2017 magnetic resonance imaging (MRI) scan of the right knee revealed grade
II to III chondromalacia patella, advanced chondromalacia of the anterior third of the lateral
femoral condyle, a Baker’s cyst, and presumed postoperative signal in the posterior horn of the
medial meniscus.
In an impairment evaluation dated December 11, 2017, Dr. Ralph D’Auria, a Boardcertified physiatrist, reviewed appellant’s history of a right knee injury. He noted that appellant
continued to experience right knee pain that increased with certain activities and right knee
swelling and weakness with extended walking. On examination of the right knee, Dr. D’Auria
measured flexion of 125 degrees with full extension. He found good stability and strength of the
knee, but tenderness to palpation of the patella and medial and lateral compartments. Dr. D’Auria
opined that appellant had a class 1 impairment of the right knee according to Table 16-3 of the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4 He applied a grade modifier of three for functional history
(GMFH), a grade modifier of two for physical examination (GMPE), and a grade modifier of two
for clinical studies (GMCS) to find a net adjustment of one and an impairment rating of eight
percent of the right lower extremity.
On March 1, 2018 appellant filed a claim for a schedule award (Form CA-7).
On March 28, 2018 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), found that Dr. D’Auria had failed to identify the diagnosis upon
which he based his impairment rating. He diagnosed status post right knee medial meniscectomy,
postoperative deep venous thrombosis of the right lower extremity, and patella chondromalacia of
the right knee. Dr. Harris opined that appellant had five percent permanent impairment of the right
lower extremity due to an osteochondral defect after a partial medial meniscectomy according to
Table 16-3 on page 511 of the A.M.A., Guides. He noted that the A.M.A., Guides did not allow
4

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

2

an impairment rating due to loss of range of motion for the applicable diagnosis. Dr. Harris found
that Dr. D’Auria’s impairment rating exceeded the maximum allowed for the diagnosis of either
an osteochondral defect or a partial medial meniscectomy, and thus disagreed with his conclusion.
He opined that appellant had reached maximum medical improvement (MMI) on
December 11, 2017.
By letter dated April 4, 2018, OWCP requested that Dr. D’Auria review the DMA’s
March 28, 2018 report and clarify his impairment rating.
In a report dated April 17, 2018, Dr. D’Auria advised that he had found that appellant had
five percent permanent impairment of the right lower extremity using the diagnosis of an
osteochondral defect and three percent permanent impairment of the right lower extremity using
the diagnosis status post partial medial meniscectomy for a total right lower extremity impairment
of eight percent. He disagreed with the DMA’s finding that the evaluator could use only one
diagnosis. Dr. D’Auria related that appellant’s condition was “more accurately represented by
adding these two impairments, for a total of [eight percent] of the lower extremity.”
On May 2, 2018 Dr. Harris again reviewed the evidence and noted that the A.M.A., Guides
instructed the evaluator to select and rate the most significant diagnosis using the diagnosis-based
impairment (DBI) method.5 He advised that the most significant diagnosis was the osteochondral
defect of the patella. Dr. Harris related that he had accounted for appellant’s partial medial
meniscectomy when applying grade modifiers. He opined that appellant had five percent
permanent impairment of the right lower extremity.
By decision dated November 8, 2018, OWCP granted appellant a schedule award for five
percent permanent impairment of the right lower extremity. The period of the award ran for 14.4
weeks from December 11, 2017 to a fraction of a day on March 21, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulation,7 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. 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.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the

5

A.M.A., Guides 499.

6

Supra note 2.

7

20 C.F.R. § 10.404.

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specified edition of the A.M.A., Guides, published in 2009.8 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by grade modifiers based on functional history (GMFH),
physical examination (GMPE) and clinical studies (GMCS).11 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12 Evaluators are directed to provide reasons
for their impairment choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of the right lower extremity, for which he previously received
schedule award compensation.
In a December 11, 2017 impairment evaluation, Dr. D’Auria opined that appellant had
class 1 impairment of the right knee according to Table 16-3 of the A.M.A., Guides. He applied a
GMFH of three, a GMPE of two, and a GMCS of two to find a net adjustment of one and an
impairment rating of eight percent of the right lower extremity. Dr. D’Auria, however, failed to
identify the diagnosis upon which he based his impairment rating and thus his opinion is of
diminished probative value.15

8

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
11

Id. at 494-531.

12

Id. at 411.

13

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

14

See supra note 6 at Chapter 2.808.6(f) (March 2017).

15

See D.B., Docket No. 17-1526 (issued April 6, 2018).

4

In accordance with its procedures, OWCP properly referred the medical record to a DMA,
Dr. Harris, who reviewed the clinical findings of Dr. D’Auria on March 28, 2018. Dr. Harris
disagreed with his finding that appellant had eight percent permanent impairment of the right lower
extremity as the rating exceeded the maximum allowed for the applicable right knee diagnoses of
an osteochondral defect of the patella and a partial medial meniscectomy.
On April 17, 2018 Dr. D’Auria reviewed the DMA’s report and advised that he had rated
appellant using both the diagnoses of a partial medial meniscectomy and an osteochondral defect
in finding an eight percent permanent impairment of the right lower extremity. He asserted that
using both diagnoses was a more accurate method of assessing appellant’s impairment. However,
the A.M.A., Guides contemplate that only one diagnosis will be used.16 As Dr. D’Auria did not
properly apply the A.M.A., Guides, his opinion is of limited probative value.17
In a report dated May 2, 2018, Dr. Harris found that appellant had five percent permanent
impairment of the right lower extremity due to his osteochondral defect, the maximum allowed
under Table 16-2 on page 511 for that diagnosis. He advised that the A.M.A., Guides instructed
the evaluator to select the applicable diagnosis if more than one diagnosis can be used for a region.
Dr. Harris noted that he had used the diagnosis of a partial medial meniscectomy in applying grade
modifiers. The A.M.A., Guides provides, “If a patient has two significant diagnoses, for instance,
ankle instability and posterior tibial tendinitis, the examiner should use the diagnosis with the
highest impairment rating in that region that is causally related for the impairment calculation.”18
Appellant’s osteochondral defect yielded a higher impairment rating, and thus the DMA properly
utilized that diagnosis in rating the extent of permanent impairment of the right knee.19
The Board finds that the weight of the medical evidence rests with the opinion of the DMA,
as he provided the only impairment rating that properly applied the sixth edition of the A.M.A.,
Guides.20 The DMA appropriately applied the A.M.A., Guides in determining that appellant had
five percent permanent impairment of the right lower extremity.21 The record does not contain
any other medical evidence establishing greater than five percent permanent impairment of the left
lower extremity. Accordingly, appellant has not met his burden of proof to establish entitlement
to a schedule award greater than that previously awarded.22

16

See A.M.A., Guides 499 (if more than one diagnosis in a region can be used, the one that provides the most
clinically accurate and causally related impairment should be used).
17

D.M., Docket No. 16-1166 (issued October 25, 2016).

18

A.M.A., Guides 497.

19

Id.; see also P.S., Docket No. 19-0486 (issued September 3, 2019).

20

See L.D., Docket No. 19-0797 (issued October 2, 2019).

21

M.J., Docket No. 17-1776 (issued December 19, 2018); M.C., Docket No. 15-1757 (issued March 17, 2016).

22

T.W., Docket No. 18-0765 (issued September 20, 2019).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of the right lower extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2020
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

6


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

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

Docket No. 10-230
Issued: September 7, 2010

Case Submitted on the Record

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

JURISDICTION
On October 30, 2009 appellant filed a timely appeal from an October 9, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs that denied reconsideration of a
September 26, 2008 merit decision. As over one year has passed since the last merit decision in
this case dated September 26, 2008, and the filing of this appeal dated October 30, 2009, the
Board lacks jurisdiction over the merits of appellant’s claim.1 Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the nonmerits of this case.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant details the facts of the case and argues that sufficient evidence was
submitted to warrant a merit review.
1

See 20 C.F.R. §§ 501.2(c) and 501.3(e)(2). Prior to November 19, 2008, appellant had one year to file an appeal
from a final Office decision.

FACTUAL HISTORY
On August 12, 2008 appellant, a 59-year-old letter carrier, filed an occupational disease
claim (Form CA-2) for osteoarthritis in her right hip. She attributed her condition to
employment tasks involving repetitive lifting, twisting and turning. Appellant first became
aware of her condition on November 25, 2005 and realized that it was caused by her federal
employment on August 4, 2008.
In support of her claim, appellant submitted several reports from her treating physician,
Dr. Alisa Hideg, Board-certified in family medicine. In a report dated August 4, 2008, Dr. Hideg
reviewed appellant’s medical history, diagnosed right hip osteoarthritis and noted appellant’s
work restrictions. Regarding causal relationship, she stated: “The right hip osteoarthritisarthritis of [the] hip [716.956] is on a more probable than not basis related to [appellant’s] prior
on-the-job injuries at the [employing establishment]. It should therefore be covered by her
work.” In a report dated September 10, 2008, Dr. Hideg, after noting appellant’s prior injuries,
added an explanation regarding the cause of her right hip osteoarthritis, stating: “Repeated
injuries have altered [appellant’s] gait and limited her range of motion. This has resulted in
premature wear and deterioration of her hip joint. It should therefore be covered by her work.”
By decision dated September 26, 2008, the Office denied the claim because appellant had
not demonstrated that the established employment factors caused a medically-diagnosed
condition.
Appellant submitted reports signed by a physician’s assistant, a note signed by a
registered nurse, an unsigned report and a September 30, 2000 note, in which Dr. Leanne
Rousseau, Board-certified in family medicine, diagnosed “work-related repetitive use injuries.”
Appellant submitted an April 23, 2001 report in which Dr. Tom Kearney, a family
physician, presented findings on examination and diagnosed right knee pain, a “clearly related
residual of right thigh scarred hematoma/lipoma” peripheral neuropathy in her left upper
extremity “suggestive of C6 radiculopathy, likely due to spondylolisthesis,” and bilateral knee
pain.
On May 8 and 18 and June 4, 2001 Dr. Gary Gleason, an orthopedist, diagnosed pain and
swelling in appellant’s left ankle and an asymmetrical edema in her lower left extremity.
In a subsequent note dated August 10, 2001, Dr. Kearney diagnosed left ankle sprain.
On November 30, 2001 Dr. Gordon Teel, a Board-certified diagnostic radiologist,
reported that x-rays of appellant’s left foot revealed a preexisting deformity of the proximal
interphalangeal joint, while x-rays of her right foot were normal.
In an April 12, 2007 report (Form CA-20), Dr. Hideg diagnosed fascitis and foot pain.
By checkmark, she opined that appellant’s condition was employment related.

2

In an October 6, 2008 note, Dr. Hideg reviewed appellant’s history of injury,
employment duties and stated:
“The right hip osteoarthritis -- ARTHRITIS OF THE HIP [716.95G] is on a more
probable than not basis related to [appellant’s] prior on-the-job injuries at the
[employing establishment]. Repeated injuries have altered her gait and limited
her range of motion. This has resulted in premature wear and deterioration of
[appellant’s] hip joint. It should therefore be covered by her work.”
However, Dr. Hideg also noted:
“[Appellant’s] job duties include lifting heavy trays and tubs of mail, getting in
and out of a mail truck that is over [two] feet off the ground and pushing large
containers of mail. Each of these job duties causes wear and tear on the joints and
hips, knees and back -- resulting in worsening osteoarthritis with time. This
process is accelerated by each acute injury … and by any change in normal body
mechanics or gait caused by injuries.”
Appellant submitted a report (Form CA-17) bearing an illegible signature, unsigned
treatment notes and a note signed by a physician’s assistant.
In an April 18, 2008 note, Dr. John K. Shuster, a Board-certified orthopedic surgeon,
presented findings on examination and diagnosed “probable right hip arthritis” and “possible
spondylolisthesis.”
On December 10, 2008 Dr. Mark R. Varga, a physiatrist, presented findings on
examination and diagnosed deep vein thrombosis prophylaxis and anemia.
Appellant submitted a December 10, 2008 report in which Dr. Donald E. Ellingsen, a
Board-certified orthopedic surgeon, diagnosed right hip osteoarthritis.
On September 16, 2009 appellant, through her attorney, requested reconsideration.
By decision dated October 9, 2009, the Office denied appellant’s reconsideration request
without conducting a merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit under section 8128(a) of the Federal
Employees’ Compensation Act,2 the Office’s regulations review 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.3 To be entitled to a merit review of an Office decision denying or
2

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).
3

20 C.F.R. § 10.606(b)(2).

3

terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 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.5
ANALYSIS
Appellant’s reconsideration request did not demonstrate that the Office erroneously
applied or interpreted a specific point of law, nor did it advance a relevant legal argument not
previously considered by the Office. Consequently, she is not entitled to a merit review of her
claim based on the first and second above-noted requirements under section 10.606(b)(2).
Most of the medical reports appellant submitted after the September 26, 2008 decision
did not provide new and relevant evidence in support of appellant’s right hip occupational injury
claim. The Board notes that appellant submitted reports from a physician’s assistant and a nurse.
Reports prepared by physician’s assistants and nurses do not constitute competent medical
evidence as these health care professionals are not considered “physicians” under the Act.
Furthermore, most of the medical reports, including those of Drs. Rousseau, Kearney, Gleason,
Teal and Varga submitted to the record after September 26, 2008 did not address appellant’s
right hip condition, but rather pertained to other lower extremity conditions. While Drs. Shuster
and Ellingsen did provide diagnoses pertinent to appellant’s right hip condition, these reports did
not address the underlying issue in this case, causal relationship.
However, appellant did submit new relevant and pertinent evidence supporting her claim
and thus is entitled to merit review under the third enumerated ground.
In previous reports, Dr. Hideg stated that appellant’s condition is “… more probable than
not … related to her prior on-the-job injuries at the [employing establishment]. Repeated
injuries have altered her gait and limited her range of motion. This has resulted in premature
wear and deterioration of her hip joint. It should therefore be covered by her work.”6 However,
in the October 6, 2008 report, submitted to the record after the September 26, 2008 decision,
Dr. Hideg reviewed appellant’s history of injuries, noted that these injuries had affected her gait
and her ability to work in an ergonomically correct way and then added:
“Her job duties include lifting heavy trays and tubs of mail, getting in and out of a
mail truck that is over 2 feet off the round, and pushing large containers of mail.
Each of these job duties causes wear and tear on the joints in the hips, knees and
back -- resulting in worsening osteoarthritis with time. This process is accelerated
by each acute injury (such as those listed above) and by any change in normal
body mechanics or gait caused by injuries.”
4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

See Leonard J.O. Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).

4

This evidence was new, pertinent and relevant to the underlying issue of causal
relationship, i.e., whether the established employment factors caused a medically-diagnosed
condition. Dr. Hildeg’s prior reports did not provide this detailed analysis in support of causal
relationship.
Since appellant submitted relevant and pertinent new evidence not previously considered
by the Office, the Office improperly declined to reopen her case for further consideration of the
merits pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that the Office improperly declined to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 9, 2009 decision of the Office of
Workers’ Compensation Programs is vacated and this case is remanded for further proceedings
consistent with this opinion, to be followed by an appropriate decision.
Issued: September 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 08-1785
Issued: January 9, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs dated December 3, 2007, denying his claim for a schedule
award as the Office found that he had no ratable hearing loss in the left ear and tinnitus. His
appeal is also timely filed from the February 15, 2008 decision, denying appellant’s request for
an oral hearing. Finally, appellant’s appeal was timely filed from the May 9, 2008 decision
denying his claim for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant established entitlement to a schedule award due to
a monaural (left ear) hearing loss and tinnitus causally related to factors of his federal
employment; (2) whether the Office properly denied appellant’s request for an oral hearing; and
(3) whether the Office properly refused to reopen appellant’s case for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On January 25, 2007 appellant, then a 53-year-old former crane operator, filed an
occupational disease claim alleging that he suffered hearing loss as a result of working around
loud noise during his federal employment. He noted that his right middle ear bone was damaged
in childhood. The employing establishment noted on the claim form that appellant was removed
from employment on February 19, 2003.
In support of his claim, appellant submitted a February 8, 2007 report wherein
Dr. Gerald G. Randolph, a Board-certified otolaryngologist, diagnosed bilateral sensorineural
hearing loss and tinnitus in the left ear. Dr. Randolph noted that appellant has indicated that for
the past 20 years he had a progressive hearing loss in both ears and constant tinnitus in his left
ear. He noted that appellant suffered a right ear injury as a young child resulting in persisting
hearing loss in his right ear. Dr. Randolph also noted that appellant was on active duty with the
Navy from 1973 to 1977 where he had noise exposure. He noted that from 1977 to May 2001
appellant was employed as a heavy equipment operator and then a crane operator at the
employing establishment. Dr. Randolph noted that appellant’s audiogram revealed a very
significant sensorineural hearing loss in the right ear. He noted that this hearing loss was present
on audiograms dating back to November 23, 1983 and may have progressed somewhat in
severity for those higher tones since 1983. Dr. Randolph opined that appellant had a 37.5
percent hearing loss in the right ear, a 0 percent hearing loss in the left ear and a binaural hearing
loss ratable at 6.25 percent. He also recommended a two percent rating for tinnitus noting that
appellant’s tinnitus tended to interfere with aspects of normal daily living. Dr. Randolph noted
that review of claimant’s industrial audiograms dating back to the time of his initial employment
for the employing establishment in 1977 would be necessary to determine if the hearing loss has
been aggravated by industrial noise exposure. The audiogram performed in connection with this
examination, taken on February 6, 2007 was also submitted.1
Appellant also submitted results of prior audiograms conducted for the employing
establishment.
By letter dated April 25, 2007, the Office asked Dr. Randolph to perform an
“independent medical examination.”2 In an opinion dated May 22, 2007, Dr. Randolph
diagnosed bilateral sensorineural hearing loss. He noted that the hearing loss was considerably
in excess of what would normally be predicted on the basis of presbycusis. Dr. Randolph opined
that the workplace exposure was of sufficient intensity and duration to have aggravated hearing
1

This audiogram reflected testing at frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) and
revealed decibel loss on the left of 20, 20, 20 and 15 (air) and 15, 20, 15 and 15 (bone), respectively. For the right
ear the losses were noted as 15, 20, 80 and 85 (air) and 10, 15, 80 and 85 (bone), respectively. The audiologist
calculated this as showing a 0 percent impairment to the left ear and a 37.5 percent (air) and 35.625 percent
impairment (bone) to the right ear, which she noted would be a 27 percent (air) and 25.125 percent impairment
(bone) if adjusted for presbycusis. She calculated appellant’s binaural hearing loss as 6.25 percent (air) and 5.94
percent (bone).
2

The Board notes that although the Office referred appellant to Dr. Randolph for an “independent” examination
thereby implying a conflict in medical opinion pursuant to 5 U.S.C. § 8123(a), there was no conflict in medical
opinion as appellant had initially selected Dr. Randolph and there was no opposing medical evidence.

2

loss if inadequate ear protection were utilized. He opined that, on a more probable than not
basis, the hearing loss in appellant’s left ear has not been aggravated by industrial noise
exposure. With regard to the right ear, Dr. Randolph indicated that, on a more probable than not
basis, the increased hearing loss in the right ear was not related to noise and suggested a private
otolaryngologic evaluation to rule out acoustic neuroma. He then recommended a two percent
rating for tinnitus as it did interfere with sleep and activities. Dr. Randolph noted that, in the
absence of evidence of increasing hearing loss due to noise exposure, he could not specifically
state that the tinnitis was related to industrial noise, but he did note that appellant had noise
exposure during his federal employment and that the tinnitus in his left ear began while he was
working for the employing establishment. The results of an audiogram conducted for
Dr. Randolph were also submitted.3
By letter dated July 10, 2007, the Office asked the Office medical adviser to review
appellant’s hearing loss claim. In a report dated July 13, 2007, the Office medical adviser noted
that he needed the audiogram performed on February 26, 2007. He noted that this was the
closest valid audiogram to appellant’s last workplace noise exposure so this test would be more
significant than the one performed on May 22, 2007. The Office medical adviser then noted that
appellant had hearing loss in his right ear secondary to nonwork-related accident and indicated
that both Dr. Randolph and he did not feel that workplace noise exposures aggravated the loss in
this ear.
The Office medical adviser disagreed with Dr. Randolph in that he believed that
appellant’s left ear hearing loss was related to his federal employment workplace noise exposure.
He noted that, since he did not have the February 26, 2007 audiogram, he could not confirm that
this audiogram showed zero percent loss but that if the audiogram did show a zero percent
hearing loss impairment than no tinnitus rating may be given.
By letter dated July 23 2007, the Office accepted appellant’s claim for noise-induced
monaural tinnitus in his left ear. In a decision dated July 24, 2007, it denied appellant’s claim for
a schedule award for tinnitus.
On July 26, 2007 appellant filed a claim for a schedule award.
On August 9, 2007 appellant requested review of the written record by an Office hearing
representative. By letter dated October 2, 2007, he requested an oral hearing. Appellant
contended that he was ill-advised by a representative of Conner Hearing Clinic who he did not
believe completely informed him of the various appeals available.
By decision dated October 19, 2007, the hearing representative set aside the Office’s
decision and remanded the case for further development of the evidence. He noted that the
Office medical adviser indicated that he needed the audiogram performed by Dr. Randolph’s
office on February 25, 2007, but it was never given to him.

3

This audiogram, conducted on May 22, 2007 reflected testing at frequency levels of 500, 1,000, 2,000 and 3,000
cps and revealed decibel losses on the right ear (air) of 25, 25, 85 and 105, respectively and 25, 20, 20 and 20,
respectively for the left ear.

3

By letter dated November 5, 2007, the Office forwarded the February 6, 2007 audiogram
to the Office medical adviser and asked him to determine if the tinnitus was ratable due to
appellant’s federal employment and if so, to provide the percentage of impairment. In a medical
report dated November 6, 2007, the Office medical adviser concluded that appellant’s hearing
loss in his left ear was related to his workplace noise exposure and that the right ear hearing loss
was due to a prior accident and was not work related. He did note that the right monaural
hearing impairment was 37.5 percent and that the binaural hearing impairment would be 6.3
percent. The Office medical adviser noted that he did not believe the right ear impairment was
work related, but that if the Office disagreed, then appellant would be entitled to a right ear
impairment of 37.5 percent plus 2 percent for tinnitus for a total of 39.5 percent. He did note that
appellant’s tinnitus was at least aggravated by his workplace exposure and recommended hearing
aids to help with tinnitus symptoms.
By decision dated December 3, 2007, the Office found that appellant had not established
a ratable impairment due to hearing loss or tinnitus.
By letter dated February 3, 2008, appellant requested an oral hearing. He noted that,
although he had not filed this request within 30 days, he asked that the request be allowed
because at the time of the decision he was not aware of the various avenues of appeal available.
Appellant further noted that he was unable to find an attorney to represent him at a reasonable
fee.
By decision dated February 15, 2008, the Office denied appellant’s request for an oral
hearing as untimely filed. It further found that appellant’s request could be equally well
addressed by requesting reconsideration from the Office and submitting new evidence or
appealing to this Board.
By letter dated March 19, 2008, appellant requested reconsideration. He contended that
his tinnitus was in both ears and not just his left ear and that he was entitled to a schedule award.
By decision dated May 9, 2008, the Office denied appellant’s claim for reconsideration
without reviewing the merits of the case.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

4

Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.8 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.9 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.10 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.11 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.12
Regarding tinnitus, the A.M.A., Guides states that tinnitus in the presence of unilateral or
bilateral hearing impairment may impair speech discrimination. Therefore, up to five percent
may be added for tinnitus in the presence of measurable hearing loss, if the tinnitus impacts the
ability to perform the activities of daily living.13
ANALYSIS -- ISSUE 1
The Board finds that the evidence of record is insufficient to establish that appellant is
entitled to a schedule award as his hearing loss in the left ear in accordance with the fifth edition
of the A.M.A., Guides is not ratable.14
Dr. Randolph concluded on May 22, 2007 that appellant’s right ear hearing loss was not
aggravated by his employment factors as it was due to a childhood middle ear injury. However,
he further concluded that the left ear loss and tinnitus were due to noise exposure causally related
to factors of appellant’s federal employment.
6

Id.

7

A.M.A., Guides 246-51 (5th ed. 2001).

8

Id.

9

Id.

10

Id.

11

Id.

12

See B.A., 58 ECAB ___ (Docket No. 06-2048, issued January 10, 2007; see also Donald Stockstad, 53 ECAB
301 (2002), petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).
13

A.M.A., Guides 246.

14

The Board notes that the Office never issued a decision with regard to any impairment to appellant’s right ear.
Accordingly, whether appellant was entitled to a schedule award for any impairment to his right ear is not currently
before the Board. See 20 C.F.R. § 501.2(c).

5

The Office medical adviser and Dr. Randolph both properly concluded that appellant had
no ratable hearing impairment to his left ear. Using the results for the February 6, 2007
audiogram, the Office medical adviser reviewed the otologic and audiologic testing of
Dr. Randolph and properly applied the Office’s standardized procedures to this evaluation.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
decibel losses of 20, 20, 20 and 15, respectively. These decibel losses were totaled at
75.0 decibels and were divided by 4 to obtain the average hearing loss of 18.75 decibels. The
average loss was then reduced by 25 decibels (25 decibels being discounted as discussed above)
to equal a negative figure.
With regard to the tinnitus, the Board notes that the A.M.A., Guides provides that up to
five percent may be added for tinnitus in the presence of measurable hearing loss if the tinnitus
impacts the ability to perform the activities of daily living.15 There is no provision for an award
in the absence of a measurable hearing loss. As “measurable” is synonymous with “ratable,” the
Board finds, accordingly, that appellant’s left ear loss is not ratable and thus he is not entitled to
a schedule award for tinnitus.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that, before review under section 8128(a) of this
title, a claimant not satisfied with a decision of the Secretary is entitled, on request made within
30 days after the date of the issuance of the decision, to a hearing on his claim before a
representative of the Secretary.16 Section 10.614 of the federal regulations implementing this
section of the Act provides that a claimant shall be afforded a choice of an oral hearing or a
review of the written record.17 The Office’s regulations provide that the request must be sent
within 30 days of the date of the decision, for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.18
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.19 The Office’s procedures, which require the
Office to exercise its discretion to deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of Board precedent.20

15

See supra note 13.

16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. § 10.615.

18

Id. at § 10.616(a).

19

Marilyn F. Wilson, 52 ECAB 347 (2001).

20

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Review of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

6

ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for an oral hearing as
untimely filed. Appellant requested an oral hearing following the Office’s December 3, 2007
decision. His request was dated February 3, 2008, more than 30 days after the December 3, 2007
decision was issued. Therefore, appellant was not entitled to a hearing as a matter of right.
The Office nevertheless exercised its discretionary authority by further considering
appellant’s request for a hearing in relation to the issue involved. It determined that the issue in
the case could be equally well addressed by requesting reconsideration by the district Office and
submitting new evidence in support of his claim. The Board finds that the Office appropriately
exercised its discretion in denying appellant’s hearing request. Accordingly, the Board finds that
the Office’s denial of appellant’s untimely hearing request was proper.
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.21
ANALYSIS -- ISSUE 3
The Board finds that appellant’s request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Furthermore, appellant did not submit any pertinent new and relevant evidence in support of his
request for reconsideration. Thus, the Office properly declines to reopen the case on the merits
as appellant did not meet the criteria for a merit review.22
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award
for a left ear hearing loss and tinnitus. The Board further finds that the Office properly denied
appellant’s request for an oral hearing and properly refused to reopen his case for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

21

20 C.F.R. § 10.606(b)(2)(i-iii).

22

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 9 and February 15, 2008 and December 3, 2007 are
affirmed.
Issued: January 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, PARLIN POST
OFFICE, Parlin, NJ, Employer
__________________________________________

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)

Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0286
Issued: July 9, 2021

Case Submitted on the Record

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

JURISDICTION
On November 18, 2019 appellant, through counsel, filed a timely appeal from a June 26,
2019 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.3

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.

3
The Board notes that following the June 26, 2019 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability from work commencing June 26, 2017, causally related to the accepted April 2, 2013
employment injury.
FACTUAL HISTORY
On April 30, 2013 appellant, then a 39-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 2, 2013 he injured his left knee when he stepped in a divot and
twisted his leg while in the performance of duty. OWCP initially accepted his claim for a tear of
the medial meniscus of the left knee and subsequently expanded acceptance of the claim to include
localized primary osteoarthritis of the left lower leg. Appellant intermittently stopped work. On
October 14, 2016 he returned to limited-duty work, and on October 21, 2016 he returned to fullduty work.
In a May 22, 2017 report, Dr. David Lessing, a Board-certified orthopedic surgeon,
indicated that appellant complained of pain and swelling in his left knee. Appellant’s physical
examination revealed pain in the medial aspect of his left knee, but otherwise normal results. His
diagnosis was listed as internal derangement of the left knee. Dr. Lessing indicated that appellant
should work in a sedentary capacity until he obtained a magnetic resonance imaging (MRI) scan
of his left knee. He also completed a May 22, 2017 form noting appellant’s date of injury as
April 2, 2013 and indicated by checking a box marked “Yes” that appellant’s current condition
was related to his April 2, 2013 injury. Dr. Lessing opined that appellant could return to sedentary
work.
A June 1, 2017 MRI scan of appellant’s left knee was compared to an October 21, 2013
MRI scan of appellant’s left knee and interpreted by Dr. Barry Katz, Board-certified in radiology.
It revealed postoperative changes in the medial and lateral menisci, findings that were suggestive
of a tear in the anterior horn of the lateral meniscus with an adjacent meniscal cyst, a small effusion,
chronic degenerative changes with signal changes along both sides of the medial joint space
compartment, and proximal patellar tendinopathy.
In a June 12, 2017 report, Dr. Lessing indicated that he reviewed appellant’s June 1, 2017
left knee MRI scan and noted that appellant had undergone previous medial and lateral
meniscectomies. He indicated that appellant’s anterior lateral knee pain matched the MRI scan
findings. A physical examination of appellant’s left knee displayed minimal effusion and
otherwise normal results. Dr. Lessing noted that appellant felt his condition had improved and
while he was currently on light duty, he was to return to full duty on June 19, 2017. Dr. Lessing
also noted that if appellant’s symptoms were provoked by regular duty in a way that indicated he
had an anterolateral meniscal tear, he would consider an arthroscopy. An undated form was also
received wherein Dr. Lessing noted appellant’s date of injury as April 2, 2013 and indicated by
checking a box marked “Yes” that appellant’s current condition was related to his April 2, 2013
injury. He noted appellant’s diagnosis as osteoarthritis of the left knee and returned appellant to
work full duty on June 19, 2017.
Appellant returned to full-duty work on June 19, 2017.

2

In a July 6, 2017 form, Dr. Lessing again noted appellant’s diagnosis of osteoarthritis of
the left knee. He indicated that as of July 8, 2017 appellant could return to sedentary work,
primarily sitting, and he noted that appellant was able to walk every two to three hours.
On July 14, 2017 Dr. Wadie Toma, a Board-certified rheumatologist, indicated that
appellant was seen in his office that day. He requested that appellant be excused from work.
On August 9, 2017 appellant filed a claim for compensation (Form CA-7) for leave without
pay (LWOP) used for the period June 24 to July 29, 2017. On the reverse side of the claim form,
the employing establishment indicated that it challenged the entire period claimed by appellant.
Attached time analysis forms (Form CA-7a) indicated that appellant had stopped work on
June 27, 2017.
In a development letter dated August 18, 2017, OWCP informed appellant of the
deficiencies in his “recurrence” claim and advised him of the type of evidence necessary to
establish his claim. It noted his accepted conditions of tear of the medial meniscus of the left knee
and localized primary osteoarthritis of the left lower leg, and it requested that appellant provide a
rationalized medical report explaining the basis of his claimed recurrence. OWCP also provided
appellant a questionnaire for completion and afforded him 30 days to provide the requested
evidence.
OWCP thereafter received a July 6, 2017 report from Dr. Lessing wherein he noted that
appellant’s left knee gave out after he returned to full-duty work. Dr. Lessing indicated that
appellant became symptomatic again, but that his pain was not localized to the anterior horn of the
lateral meniscus, but rather was located in the posterior, lateral, suprapatellar, and medial aspects.
Appellant’s physical examination revealed normal results, and Dr. Lessing opined that appellant’s
symptoms were more related to his arthritis than to a retear of his meniscus. He concluded that
appellant should return to sedentary work because his left knee would not tolerate regular duty.
In an August 21, 2017 report, Dr. Lessing indicated that appellant tolerated light duty well,
but when he performed his letter carrier route he was only able to complete half of it and then
developed left knee pain and swelling. Physical examination of appellant’s left knee revealed a
popliteal cyst and minimal pain upon palpation, more medially than elsewhere. Dr. Lessing noted
that appellant’s left knee x-rays displayed loss of medial joint space, almost bone-on-bone, and
medial tibial sclerosis. He concluded that, due to the x-ray findings, a partial knee replacement
was a reasonable treatment to explore and indicated that appellant should continue working light
duty in the interim.
On August 21, 2017 Dr. Lessing completed a form indicating that appellant’s work status
was unchanged.
By decision dated October 3, 2017, OWCP denied appellant’s recurrence claim as of
June 26, 2017, finding that the medical evidence of record was insufficient to establish that he was
disabled from work due to a material worsening of his accepted conditions.
OWCP subsequently received additional evidence. In a September 18, 2017 medical
report, Dr. Cris Beiro, a Board-certified orthopedic surgeon, reviewed appellant’s history of injury
and medical treatment. Dr. Beiro noted that appellant complained of left knee pain while
ascending and descending stairs, rising from a seated position, kneeling, and after prolonged
standing and walking. Appellant also noted swelling, clicking, locking, and instability of the left
3

knee. Physical examination of appellant’s left knee revealed mild swelling, tenderness in the
medial joint line and medial tibial plateau, range of motion from 5 to 125 degrees with crepitus
throughout and pain at terminal flexion, an antalgic gait, and varus deformity. Dr. Beiro noted that
x-rays of appellant’s left knee revealed severe degenerative changes in the medial compartment
with subchondral sclerosis and osteophytes. Joint space narrowing was seen in the medial
compartment with bone on bone and no space maintained. A varus deformity and mild-tomoderate degenerative joint disease were also noted. Dr. Beiro noted appellant’s diagnosis of left
knee osteoarthritis and suggested unicompartmental knee arthroplasty.
Dr. Lessing, in a September 26, 2017 narrative report, noted that appellant should be
evaluated for a partial knee replacement. He indicated that he initially saw appellant on April 18,
2013 when he complained of left knee pain due to a twisting injury at work, and a left knee MRI
scan revealed that he had a torn medial meniscus. Dr. Lessing explained that appellant had
undergone an arthroscopy and medial meniscectomy in May 2013 and he did well postoperatively,
but continued to have residual medial symptoms. Appellant was subsequently diagnosed with left
knee osteoarthritis due to a progressive loss of medial joint space. Dr. Lessing noted that since
appellant’s last visit on August 21, 2017 he had been working as a mail carrier episodically based
on his symptoms, and that he currently complained of pain and swelling at the medial aspect of
the knee aggravated by stairs and weight bearing. Physical examination of appellant’s left knee
revealed focal medial joint line tenderness and some swelling. Dr. Lessing reviewed appellant’s
recent left knee MRI scan and x-rays and indicated that his current diagnosis was osteoarthritis of
the left knee. He indicated that due to the arthritis, appellant’s left knee was limited in its ability
to bear weight and ascend stairs, which impaired his ability to perform his work duties. Dr. Lessing
explained that appellant’s original twisting injury damaged his articular cartilage and the meniscal
tissue in his knee, and he opined that the post-meniscectomy knee was more susceptible to arthritic
progression than a knee with an intact meniscus due to the loss of the protective function of the
meniscus with the procedure. He concluded that appellant’s left knee osteoarthritis was causally
related to his employment injury.
On October 2, 2017 Dr. Beiro indicated that appellant presented with left knee pain and
that his symptoms had not improved. He conducted a physical examination which revealed mild
swelling, tenderness in the medial joint line and medial tibial plateau, range of motion from 5 to
125 degrees with crepitus throughout and pain at terminal flexion, an antalgic gait, and varus
deformity. Dr. Beiro noted appellant’s diagnosis of left knee osteoarthritis and recommended
unicompartmental knee arthroplasty.
October 13, 2017 left knee x-rays interpreted by Dr. Laura Grygotis, Board-certified in
radiology, revealed unicompartmental knee prosthesis in the medial articular compartment.
An October 13, 2017 operative report by Dr. Beiro indicated that appellant suffered a left
knee injury at work, and that inflammation and secondary injury led to meniscal tearing and
progression of degenerative joint disease. Dr. Beiro reviewed appellant’s history of treatment and
indicated that he had performed a left unicompartmental knee arthroplasty.
Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a district medical
adviser (DMA), reported on October 13, 2017 that he had reviewed OWCP’s statement of accepted
facts (SOAF) and appellant’s medical records. Dr. Hammel indicated that appellant’s left knee
joint revision procedure was causally related to his accepted medical condition, but that that he

4

needed more information about appellant’s functional limitations to determine whether it was
medically necessary.
On October 31, 2017 appellant, through counsel, requested a review of the written record
by a representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received appellant’s completed development questionnaire dated
November 14, 2017. He related that since his original workplace injury, he had experienced left
knee pain and swelling. Appellant indicated that he had undergone arthroscopic surgery on May 1,
2013 and then received synthetic cartilage injections every six months, but in 2015 developed an
allergic reaction to the injections that caused swelling and stopped their efficacy in treating his
pain. In May 2017, Dr. Lessing informed appellant that he should perform light-duty work due to
increased pain and swelling in his knee. Appellant noted that there were many days where he was
not able to work at all because he could not bend his knee or walk due to the amount of pain and
swelling. He explained that his recurrence occurred when he experienced this increased pain in
his left knee, and he indicated that his June 1, 2017 MRI scan of his left knee confirmed that he
had a meniscus retear and a Baker’s cyst. He noted that both Dr. Lessing and Dr. Beiro had
recommended a partial knee replacement.
Appellant submitted additional Form CA-7a time analysis forms claiming compensation
for LWOP for intermittent wage loss from July 31 to October 7, 2017.
By decision dated January 29, 2018, an OWCP hearing representative affirmed OWCP’s
October 3, 2017 decision, finding that appellant had not established a recurrence of disability
commencing June 27, 2017 causally related to his accepted employment injury.
In an August 29, 2018 second opinion report, Dr. Andrew Farber, an osteopath and Boardcertified orthopedic surgeon, reviewed appellant’s history of injury and medical records and
opined that it was reasonable to relate appellant’s left knee degenerative progression to his
accepted employment injury, and therefore his unicompartmental knee replacement surgery was
appropriate.
On October 17, 2018 OWCP authorized appellant’s left knee replacement surgery and
recurrence of disability as of October 13, 2017.
On December 28, 2018 appellant, through counsel, requested reconsideration.
By decision dated March 20, 2019, OWCP denied modification of its January 29, 2018
decision.
On April 16, 2019 appellant, through counsel, requested reconsideration.
The record reflects that on April 25, 2019 OWCP placed appellant on the supplemental
rolls for his recurrence of disability as of October 11, 2017.
By decision dated June 26, 2019, OWCP denied modification of its March 20, 2019
decision.

5

LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.4
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.5 Where no such rationale is present,
the medical evidence is of diminished probative value.6
ANALYSIS
The Board finds that this case is not in posture for decision.
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.7 OWCP has an obligation to see that justice is
done.8
The Board finds that, although the medical reports by Dr. Lessing are insufficiently
rationalized to meet appellant’s burden of proof to establish that his claimed recurrence as of
June 27, 2017 was due to the April 2, 2013 employment injury, his reports were sufficient to
require further development of the case by OWCP.9 Dr. Lessing’s opinion is based upon a
complete factual history and medical background and expresses an unequivocal opinion that is
supportive of the claim. The Board has explained that to establish a period of disability the medical
evidence must provide a discussion of how objective medical findings, attributable to the accepted
conditions, support a finding that a claimant could not perform his job duties.10 Dr. Lessing
explained that while appellant had attempted to return to full-duty work on June 19, 2017, he
sustained pain and swelling of his left knee when attempting to complete his letter carrier duties.
He explained that appellant’s left knee osteoarthritis limited his ability to bear weight on the knee
4

20 C.F.R. § 10.5(x).

5

See J.S., Docket No. 19-1035 (issued January 24, 2020).

6

Id.

7

T.L., Docket No. 19-1572 (issued March 12, 2020).

8

Id.

9

See N.L., Docket No. 19-1456 (issued July 14, 2020).

10

See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 19-1595 (issued August 13, 2020);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

6

and ascend stairs. Dr. Lessing also explained that appellant’s left knee x-rays supported his left
knee complaints and indicated a progression of his accepted left knee arthritis condition.
Therefore, his opinion raises an inference of causal relationship sufficient to require further
development by OWCP.11 .
The case is therefore remanded to OWCP to obtain a rationalized medical opinion as to
whether appellant sustained a recurrence of disability commencing June 26, 2017 due to the
accepted employment injury. On remand, OWCP shall refer appellant along with a statement of
accepted of facts (SOAF)12 and the case record to a specialist in the appropriate field of medicine
to provide a rationalized opinion as to whether his claimed recurrence of disability commencing
June 26, 2017 was causally related to his accepted conditions. If the physician opines that
appellant has not sustained a recurrence of disability causally related to the employment injury, he
or she must explain with rationale how or why their opinion differs from that of Dr. Lessing. After
this and other such further development deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

I.S., Docket No. 19-1461 (issued April 30, 2020).

12

The SOAF shall clarify the specific period of the claimed recurrence of disability.

7

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 9, 2021
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD, HI, Employer
__________________________________________

)
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)
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)
)
)

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

Docket No. 14-658
Issued: June 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2014 appellant filed a timely appeal from the October 4, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established a right knee injury causally related to factors of
his federal employment.
On appeal, appellant contends that he sustained an employment-related right knee injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 18, 2013 appellant, then a 56-year-old electronics mechanics supervisor, filed an
occupational disease claim (Form CA-2) alleging that on December 19, 1985 he first became
aware of his right knee pain and realized that his condition was caused by his federal
employment. He stated that crawling in tight spaces, twisting his knee and carrying heavy
equipment and tools up and down ladders at work caused his right knee to worsen. Appellant
was last exposed to the conditions alleged to have caused his condition on March 20, 2011.
By letter dated July 19, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested additional factual and medical evidence. OWCP
also requested that the employing establishment submit any medical evidence regarding
treatment appellant received at its medical facility.
In an undated letter, appellant listed a history of his employment and medical treatment.
In a September 4, 2013 letter, he stated that he had retired from the employing establishment.
Medical reports dated February 13, 1986 from Dr. Terry A. Vernoy, an orthopedic
surgeon, indicated that appellant underwent right knee arthroscopy with a partial medial
meniscectomy to treat his torn right medial meniscus on that date. He listed a history that
appellant struck the inside portion of his right knee while climbing down a large ladder at work
on December 19, 1985.
A February 14, 1986 pathology report from The Queen’s Medical Center contained a
partially illegible signature of a physician. It stated that a specimen showed fibrocartilage
consistent with meniscus, degeneration.
In a March 25, 2011 report, Dr. Brent J.H. Baker, a Board-certified radiologist, advised
that x-rays of the right knee showed medial slightly greater than lateral compartments. There
was calcification along the articular margin of the medial meniscus that suggested
chondrocalcinosis. There was also degenerative spurring of the patella. No large knee effusion
or fracture was identified.
In a June 6, 2012 report, Dr. Stephen Ko, a Board-certified radiologist, advised that a
magnetic resonance imaging (MRI) scan of the right knee demonstrated torn posterior horn
medial meniscus, multiloculated Baker’s cyst. There was a multiloculated and ganglion or
bursal fluid collection surrounding the popliteus tendon. The MRI scan showed thickened illdefined acromioclavicular and posterior cruciate ligament without increased signal and suspected
chronic partial tears. There was mild-to-moderate arthritis and mild knee effusion.
Appellant submitted an amended Form CA-2 to reflect that he first became aware of his
claimed right knee condition and realized that it was caused by his employment on
March 25, 2011.
In an October 4, 2013 decision, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence was insufficient to establish that he sustained an injury or a
medical condition causally related to the established employment factors.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his or her belief that the
condition was caused by his or her employment is sufficient to establish a causal relationship.6
ANALYSIS
OWCP accepted appellant’s factors of federal employment as an electronics mechanic
supervisor. It denied his claim, however, on the grounds that the evidence failed to establish a
causal relationship between those activities and his diagnosed conditions. The Board finds that
the medical evidence of record is insufficient to establish that appellant developed a right knee
condition causally related to factors of his federal employment.
Dr. Vernoy’s reports listed a history of a right knee injury sustained by appellant at work
on December 19, 1985 and addressed his torn right medial meniscus for which he underwent
arthroscopic surgery on February 13, 1986. These reports predate the 2013 occupational disease
claim as well as the date that appellant stated that he was first aware of his condition,
2

5 U.S.C. §§ 8101-8193.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

March 25, 2011. Thus, Dr. Vernoy’s reports provide no specific support for the claimed injury
that is at issue on the present appeal.
The diagnostic test results from Drs. Baker and Ko addressed appellant’s right knee
conditions, but failed to provide a medical opinion addressing whether his diagnosed conditions
were caused by the established employment factors. Medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value.7 The
Board finds that the reports from Drs. Baker and Ko are insufficient to establish appellant’s
claim.
The February 14, 1986 pathology report from The Queen’s Medical Center which
contained the physician’s partially illegible signature is insufficient to establish appellant’s
claim. Reports that are unsigned or bear illegible signatures, lack proper identification and
cannot be considered probative medical evidence.8
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a right knee condition causally related to the accepted
employment factors. Appellant did not meet his burden of proof.
On appeal, appellant contended that he sustained an employment-related right knee
injury. As discussed above, he did not submit sufficiently rationalized medical evidence to
establish his claim.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right knee injury
causally related to factors of his federal employment.

7

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
8

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

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