United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POSTAL SERVICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:

Docket No. 15-1363
Issued: May 24, 2016

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 4, 2015 appellant filed a timely appeal from an April 27, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has more than 46 percent permanent impairment of the left
arm and 22 percent permanent impairment of the right arm for which she previously received
schedule awards.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument. By order dated February 19, 2016, the Board exercised its
discretion and denied her request as her arguments could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 15-1363 (issued February 19, 2016).

FACTUAL HISTORY
On April 19, 1993 appellant, then a 37-year-old letter carrier, filed an occupational
disease claim (Form CA-2) asserting that she developed right shoulder tendinitis and a rotator
cuff injury as a result of performing repetitive duties at work. OWCP had initially denied
appellant’s claim but, on December 15, 2000, it accepted her claim for bilateral shoulder
impingement syndrome and expanded her claim to include left shoulder and acromioclavicular
joint degenerative joint disease. Appellant did not initially stop work, but returned to a lightduty position. She retired on January 27, 2014.
On December 19, 2000 appellant had filed a claim for a schedule award (Form CA-7). In
a January 9, 2001 report, the OWCP medical adviser reviewed her medical records and opined
that in accordance with the fourth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides)3 appellant sustained 15 percent
permanent impairment of the right arm. He diagnosed acromioclavicular right shoulder
impingement syndrome.
In a decision dated January 18, 2001, OWCP granted appellant a schedule award for 15
percent permanent impairment of the right arm. The period of the award ran from August 15,
2000 to July 8, 2001.
On August 23, 2001 appellant requested an additional schedule award for a greater
permanent impairment. In a May 1, 2002 report, the OWCP medical adviser reviewed the
medical records and opined that in accordance with the fifth edition, A.M.A., Guides4 appellant
had 20 percent impairment of the left upper extremity. He based his impairment rating on range
of motion deficits and weakness in the axillary nerve. The medical adviser further noted that
appellant sustained 22 percent impairment of the right upper extremity. He based his impairment
rating on range of motion deficits and weakness in the axillary nerve.
In a decision dated May 28, 2002, OWCP granted appellant a schedule award for 22
percent permanent right arm impairment. The period of the award was from May 19 to
October 18, 2002. OWCP noted that appellant had previously received a schedule award for 15
percent permanent right arm impairment and was therefore entitled to an award for an additional
seven percent impairment.
In a January 14, 2003 decision, OWCP granted appellant a schedule award for 20 percent
permanent impairment of the left arm.
The award ran from October 19, 2002 to
December 29, 2003.
Appellant came under the treatment of Dr. Thomas Branch, a Board-certified orthopedist,
who, on May 31, 2006, performed an insertion of intra-articular pain pump, left shoulder
arthroscopic distal clavicle resection, left shoulder arthroscopic superior labral tear from anterior
to posterior repair, left shoulder arthroscopic subacromial decompression, and left shoulder
3

A.M.A., Guides (4th ed. 1993).

4

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

2

diagnostic arthroscopy. He diagnosed left shoulder arthritis, left shoulder biceps long head
tenosynovitis, and left shoulder subacromial bursitis.
On August 1, 2006 appellant filed a claim for an additional schedule award.
In an October 20, 2006 report, an OWCP medical adviser reviewed the medical records
provided and noted that appellant was undergoing injection treatment with Dr. Branch and had
not reached maximum medical improvement. He noted a schedule award was premature until
maximum medical improvement was reached.
On October 25, 2006 Dr. Branch administered injections into the left shoulder biceps and
diagnosed left shoulder biceps long head tenosynovitis. On February 19, 2007 he performed left
shoulder arthroscopic distal clavicle resection, left shoulder arthroscopic subacromial
decompression, left shoulder diagnostic arthroscopy, left shoulder extensive debridement, and
left shoulder biceps long head release. Dr. Branch diagnosed arthritis of the left shoulder and left
shoulder biceps long head tenosynovitis.
On September 5, 2007 Dr. Branch performed a right shoulder arthroscopic distal clavicle
resection, arthroscopic superior labral tear from anterior to posterior repair, arthroscopic
subacromial decompression, and diagnostic arthroscopy. He diagnosed arthritis of the right
shoulder, shoulder biceps long head tenosynovitis, shoulder labral detachment, and shoulder
subacromial bursitis. In a report dated October 8, 2007, Dr. Branch diagnosed left degenerative
joint disease, acromioclavicular joint. He opined that appellant had reached maximum medical
improvement and in accordance with the fifth edition of the A.M.A., Guides had 15 percent
permanent impairment of the left arm. A magnetic resonance imaging (MRI) scan of the right
shoulder dated April 27, 2007 revealed acromioclavicular arthritis.
In a November 20, 2007 report, an OWCP medical adviser opined that appellant had 14
percent permanent impairment of her left arm. The medical adviser noted a typographical error
in Dr. Branch’s report when combining appellant’s impairment rating. On January 14, 2008
Dr. Branch concurred with the medical adviser’s finding.
In a decision dated March 31, 2008, OWCP denied appellant’s claim for an additional
schedule award, noting that the current 14 percent rating was less than the 20 percent previously
awarded for the left arm.5
Appellant continued to be treated by Dr. Branch, who, on May 16, 2008 diagnosed
arthrofibrosis and status post right shoulder surgery. Dr. Branch opined that appellant would
require total right and left shoulder arthroplasties. On February 10, 2010 he diagnosed right and
left shoulder arthritis and degenerative joint disease. On March 22, 2010 Dr. Branch performed
a left shoulder hemicap hemiarthroplasty and diagnostic arthroscopy and diagnosed arthritis of
the left shoulder and shoulder pain. He noted that the arthroscopy confirmed extensive grade IV
articular surface changes of the humeral head and of the glenoid. In a March 14, 2013 report,
5

Appellant requested an oral hearing which was scheduled for August 26, 2008. She failed to appear for the
scheduled hearing. In a September 15, 2008 decision, OWCP found that appellant abandoned her request for a
hearing.

3

Dr. Branch diagnosed right bicipital tenosynovitis, disorder of the bursae and tendons in the
shoulder region, pain in the joint shoulder region, and osteoarthrosis. He recommended surgery.
On June 12, 2013 Dr. Branch performed a right shoulder long head of the biceps release,
diagnostic arthroscopy, extensive debridement, arthroscopic distal clavicle resection, and
arthroscopic subacromial decompression. He diagnosed right shoulder dislocation, biceps long
head rupture, biceps long head tenosynovitis, arthritis, subacromial bursitis, and shoulder
arthrofibrosis. MRI scans of the right shoulder dated July 29, 2011 and June 6, 2012 revealed
extensive artifacts from prior surgery compromising the study and, although the rotator cuff was
obscured, there was no evidence of a large retracted rotator cuff tear.
On June 27, 2013 appellant again requested an increased schedule award. On July 1,
2013 OWCP requested appellant submit a medical report based on a recent examination which
addressed whether she had reached maximum medical improvement, a diagnoses upon which
impairment was based, a detailed description of any permanent impairment, and a final rating of
permanent impairment as set forth in the A.M.A., Guides.6 No additional medical evidence was
received.
In a decision dated August 12, 2013, OWCP denied appellant’s claim for an additional
schedule award. It noted that appellant had failed to submit medical evidence establishing that
she sustained increased permanent impairment to a scheduled member.
On January 21, 2014 appellant requested reconsideration.
She submitted a
December 12, 2013 report from Dr. Branch. Dr. Branch noted positive biceps stress test for
irritation and pain at the long head of the biceps, healed surgical incisions consistent with prior
surgical procedures, ongoing weakness with pain about the cuff with functional testing
bilaterally, strength testing bilaterally revealed weakness, range of motion was essentially
symmetric with limitations in all planes, acromioclavicular joints were tender bilaterally, and
shoulder crepitus was noted bilaterally. He noted that x-ray findings of the right shoulder
demonstrated type 3 acromion with intact acromiohumeral interspace. Dr. Branch diagnosed
right shoulder bursitis -- subacromial, degenerative joint disease of the acromioclavicular joint,
shoulder pain, rupture of the tendon -- nontraumatic -- biceps long head, and painful prosthesis.
He noted that in February 2007 appellant had undergone a left shoulder arthroscopic redo
acromioplasty and biceps release with findings at that time of grade 3 to 4 degenerative humeral
head changes and grade 2 to 3 changes about the glenoid. Dr. Branch noted that despite surgery
appellant remained symptomatic. He also noted that on March 22, 2010 appellant had undergone
a hemiarthroplasty about the left shoulder with humeral head hemicap placement. Dr. Branch
noted that appellant remained symptomatic about the left shoulder and recently it was
recommended that she have a total shoulder arthroplasty. He noted impairment for the right
shoulder, pursuant to the A.M.A., Guides,7 Table 15-5, Shoulder Regional Grid, appellant was a
class 1, grade E, rotator cuff injury, full-thickness tear, acromioclavicular joint status post distal
clavicle resection, for 13 percent impairment of the right arm. With regard to the left shoulder,
Table 15-5, Shoulder Regional Grid, appellant was a class 3, grade E, for a total shoulder
arthroplasty complicated and unstable for 49 percent arm impairment. Dr. Branch noted that
6

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

7

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

4

pursuant to the Combined Values Chart appellant had 62 percent upper extremity impairment
after combining 49 percent left upper extremity impairment with 26 percent right upper
extremity.
In a February 5, 2014 report, the OWCP medical adviser reviewed the medical records
and Dr. Branch’s December 12, 2013 report. He noted that appellant had received schedule
awards for 22 percent right arm impairment and 20 percent left arm impairment. For the right
shoulder, appellant had two arthroscopic procedures with residual mild arthritis for 13 percent
impairment of the right arm. The medical adviser indicated that appellant has already been
awarded 22 percent schedule award for the same condition and was not eligible for another
award. He noted that she underwent a left shoulder arthroplasty on March 22, 2010 with a
complicated and unstable result. Under the A.M.A., Guides,8 Table 15-5, page 405, appellant
was a class 3 and grade E severity for 46 percent left arm impairment. The medical adviser
noted that appellant was previously paid 20 percent impairment for the left arm and was entitled
to a schedule award for an additional 26 percent upper extremity impairment.
In a decision dated March 21, 2014, OWCP vacated the August 12, 2013 decision and
advised that a separate decision would detail the schedule award.
In a decision dated March 27, 2014, OWCP granted appellant a scheduled award for an
additional 26 percent permanent impairment for the left upper extremity.9 The period of the
award ran from March 9, 2014 to September 27, 2015. OWCP noted that appellant had
previously been awarded 20 percent permanent impairment of the left upper extremity and was
entitled to a schedule award for an additional 26 percent, for a total award of 46 percent
permanent impairment of the left upper extremity.
On February 3, 2015 appellant requested reconsideration. She submitted a report from
Dr. Michael Sabatelle, a Board-certified orthopedist, dated March 30, 2015, who treated
appellant in follow-up for bilateral shoulder pain. Dr. Sabatelle noted positive findings on
examination and diagnosed bursitis subacromial, degenerative joint disease -- acromioclavicular
joint, shoulder pain, rupture of the tendon, biceps long head, and painful prosthesis.
In a decision dated April 27, 2015, OWCP denied modification of the decision dated
March 27, 2014, finding no additional impairment was warranted for either arm.
LEGAL PRECEDENT
The schedule award provision of FECA10 and its implementing federal regulations,11 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,
8

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

9

This superseded a March 26, 2014 schedule award decision which listed an incorrect award period.

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

5

FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.13
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.14
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).15 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS).16 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).17 The grade modifiers are used on the net adjustment formula described above to
calculate a net adjustment. The final impairment grade is determined by adjusting the grade up
or down the default value C, by the calculated net adjustment.18
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the OWCP medical consultant for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the OWCP medical
consultant providing rationale for the percentage of impairment specified.19
ANALYSIS
OWCP accepted appellant’s claim for bilateral shoulder impingement syndrome and
expanded her claim to include left shoulder degenerative joint disease and acromioclavicular
joint. It authorized arthroscopic surgery which was performed on the left shoulder on May 31,
2006, February 19, 2007, and March 22, 2010, and on the right shoulder on May 27, 1993,

12

Id. at § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
15

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
16

Id. at 385-419.

17

Id. at 411.

18

Id. at 411-12.

19

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

6

September 5, 2007 and June 12, 2013.20 On January 18, 2001 appellant was granted 15 percent
permanent impairment of the right arm for acromioclavicular right shoulder impingement
syndrome. She claimed an additional award and on May 28, 2002 she was granted an additional
7 percent permanent impairment of the right upper extremity for a total 22 percent impairment of
the right arm due to her right shoulder condition. On January 14, 2003 OWCP awarded
appellant 20 percent of the left upper extremity due to her left shoulder condition. Appellant
claimed an additional award on March 27, 2014. OWCP granted her an additional 26 percent
permanent impairment for the left upper extremity for a total award of 46 percent impairment
due to her left shoulder condition.
In support of her request for an increased schedule award, appellant submitted a report
from Dr. Branch dated December 12, 2013. Dr. Branch properly noted that pursuant to the
A.M.A., Guides,21 for the right shoulder, Table 15-5, page 403, Shoulder Regional Grid,
appellant was a class 1, grade E, rotator cuff injury, full-thickness tear, acromioclavicular joint
status post distal clavicle resection, for 13 percent impairment of the upper extremity. With
regard to the left shoulder, he noted that, pursuant to Table 15-5, Shoulder Regional Grid,
appellant was a class 3, grade E, total shoulder arthroplasty, complicated and unstable, for 49
percent left upper extremity impairment. However, the shoulder regional grid22 contains no class
3 diagnoses with a grade E impairment of 49 percent. Rather, Table 15-5, Should Regional Grid,
class 3, grade E provides for 46 percent impairment rating. Further, Dr. Branch noted that using
the Combined Values Chart to combine 49 percent left upper extremity impairment with 13
percent right upper extremity impairment for 62 percent upper extremity impairment. His
determination of 62 percent impairment of the upper extremities is of limited probative value.
Although he purports to use the Combined Values Chart under the A.M.A., Guides, his
application is inconsistent with the instructions as set forth in the A.M.A., Guides, pages 22 and
23. The Combined Values Chart enables physicians to account for the effects of multiple
impairments with a summary value for each extremity, but does not instruct the examiner to
combine multiple extremities to determine upper extremity impairment.23 As Dr. Branch’s

20

Appellant underwent a right subacromial decompression on May 27, 1993, left shoulder arthroscopic distal
clavicle resection, left shoulder arthroscopic superior labral tear from anterior to posterior repair, left shoulder
arthroscopic subacromial decompression and left shoulder diagnostic arthroscopy on May 31, 2006, a left shoulder
arthroscopic distal clavicle resection, left shoulder arthroscopic subacromial decompression, shoulder diagnostic
arthroscopy, left shoulder extensive debridement and left shoulder biceps long head release on February 19, 2007, a
right shoulder arthroscopic distal clavicle resection, shoulder arthroscopic superior labral tear from anterior to
posterior repair, right shoulder arthroscopic subacromial decompression on September 5, 2007, a left shoulder
hemicap hemiarthroplasty on March 22, 2010 and a right shoulder long head of the biceps release, shoulder
diagnostic arthroscopy, arthroscopy of the shoulder, extensive shoulder debridement, right shoulder arthroscopic
distal clavicle resection, and shoulder arthroscopic subacromial decompression on June 12, 2013.
21

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

22

See A.M.A., Guides 401-05, Table 15-5.

23

Cf. Carl J. Cleary, 57 ECAB 563 (2006) (each leg impairment is considered separately under FECA; there is no
provision for bilateral leg impairment).

7

impairment rating is not properly based on the A.M.A., Guides, it is of limited probative value
and OWCP properly referred the matter to its medical adviser.24
In his February 5, 2014 report, the OWCP medical adviser reviewed the medical records
and advised that while Dr. Branch’s report of December 12, 2013 noted that appellant had 62
percent upper extremity impairment, this determination did not correlate with the A.M.A.,
Guides.25 He noted that, for the right shoulder, appellant had two arthroscopic procedures with
residual mild arthritis for 13 percent schedule award for the right upper extremity pursuant to
Table 15-5, Shoulder Regional Grid. The medical adviser properly noted that appellant was
already awarded 22 percent schedule award on May 28, 2002 for the same condition and was not
eligible for another award. He noted that appellant underwent an arthroplasty of the left shoulder
on March 22, 2010 with a complicated and unstable result. Pursuant to the A.M.A., Guides,26
Table 15-5, page 405, appellant was a class 3 and grade E severity for 46 percent left arm
impairment. The medical adviser noted appellant was previously paid 20 percent impairment for
the left arm and had an additional 26 percent arm impairment.
Appellant submitted reports from Dr. Sabatelle dated March 30, 2015. However,
Dr. Sabatelle did not address permanent impairment. The Board finds that there is no current
medical evidence in accordance with the A.M.A., Guides which supports that appellant sustained
more than 22 percent permanent impairment for the right upper extremity and 46 percent
permanent impairment for the left upper extremity.
On appeal appellant asserts that Dr. Branch’s report’s outlined appellant’s permanent
impairment and substantiated her claim for a schedule award. However, as noted above,
Dr. Branch’s report failed to clearly explain how he arrived at 62 percent permanent upper
extremity impairment pursuant to the A.M.A., Guides, and there is no provision for combining
the impairment of both arms under FECA. Accordingly, his opinion is of limited probative
value.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 22 percent permanent impairment of the
right upper extremity and 46 percent permanent impairment of the left upper extremity, for
which she previously received schedule awards.

24

See Linda Beale, 57 ECAB 429 (2006).

25

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

26

Id.

8

ORDER
IT IS HEREBY ORDERED that the April 27, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Overland Park, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Donna R. Broxterman, pro se
Office of Solicitor, for the Director

Docket No. 07-602
Issued: September 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from the December 30, 2005,
February 15 and June 2, 2006 merit decisions of the Office of Workers’ Compensation Programs
which denied compensation for claimed disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to review the merits of the disability issue. The Board also has
jurisdiction to review the Office’s August 14, 2006 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant’s disability beginning October 11, 2005 is causally
related to her March 25, 2005 employment injury; and (2) whether the Office properly denied her
July 10, 2006 request for reconsideration.

FACTUAL HISTORY
On March 25, 2005 appellant, then a 35-year-old tax examining technician, sustained an
injury in the performance of duty. She stated:
“I have a footrest under my desk which got stuck in an up position. Somehow the
computer desk was in the up position and I was under it trying to put the footrest
down. I drug the footrest out and upon standing hit the side portion (unmoving)
part of the desk.”
Appellant reported that the injury was to the middle of her back at the bottom of the
spinal column. The Office accepted her claim for low back contusion and paid compensation for
the wage loss she incurred while seeking medical attention for this injury.
In an October 28, 2005 form report, Dr. Bradley A. Appl, a family practitioner, related
that appellant’s low back pain worsened “for no apparent reason or event.” He noted decreased
range of motion and paralumbar spasm. Dr. Appl diagnosed exacerbation chronic low back pain.
He did not check a box to indicate whether appellant’s condition was a result of an employment
activity. Dr. Appl noted that appellant was totally disabled from October 11 to 21, 2005. On a
second form report dated October 28, 2005, he indicated that appellant’s condition was not
caused or aggravated by an employment activity. Dr. Appl indicated that appellant was totally
disabled through November 11, 2005. On a November 15, 2005 form report, he indicated that
appellant’s condition was caused or aggravated by an employment activity. Dr. Appl diagnosed
back contusion and muscular back and neck pain. He indicated that appellant remained totally
disabled.
Appellant claimed compensation for wage loss from October 11 to 21 and 31 to
November 11 and 15 to 25 and 29 to December 9, 2005.
On November 17, 2005 Dr. Appl reported as follows:
“[Appellant] first injured her back in approximately late March of this year. She
was under a desk picking up something and upon arising struck her back on the
corner of the desk. This was associated with pain which has persisted to this time.
Despite the pain [appellant] continued to work up until this fall at which time she
has had increased lower back pain with loss of range of motion in her lower back
along with upper back and neck pain. While she had no further injury this is most
likely related to the injury last spring.”
In a decision dated December 30, 2005, the Office denied compensation for the periods
of disability claimed. It found that Dr. Appl’s opinion was insufficient to demonstrate that
appellant’s disability was causally related to her March 25, 2005 employment injury.
Appellant claimed compensation for additional periods of wage loss. She submitted a
January 5, 2006 report from Dr. Robert M. Drisko, II, an orthopedist, who related appellant’s
history and noted negative findings on physical examination, some probable spasm in the lower
lumbar area and a little tenderness over the left sacroiliac. An x-ray report was essentially
normal. Dr. Drisko thought appellant’s main problem was post-traumatic lumbar strain. He
2

released her to work four-hour days. On a January 5, 2006 form report, Dr. Drisko indicated that
appellant’s post-traumatic lumbar strain and parascapular myofascitis were caused or aggravated
by an employment activity.
In a decision dated February 15, 2006, the Office reviewed the merits of appellant’s claim
and denied modification of its December 30, 2005 decision. The Office found that appellant’s
record lacked a well-rationalized medical opinion that her disability after October 10, 2005 was
causally related to her March 25, 2005 employment injury.
On March 2, 2006 Dr. Drisko reported that appellant was getting worse. On March 7,
2006 he provided a comprehensive physical medicine and rehabilitation evaluation. Dr. Drisko
diagnosed lumbar strain, possible mild left lower extremity weakness and possible chronic pain
syndrome. After describing his treatment plan, Dr. Drisko thoroughly explained to appellant
“about no objective physical findings were noted that would be consistent with fibromyalgia or
decrease in her functional status.”
On March 7 and May 2, 2006 form reports, Dr. Ann Lee, a pain management specialist,
diagnosed lumbar strain and possible chronic fatigue syndrome. With an affirmative mark she
indicated that appellant’s condition was caused or aggravated by an employment injury. Dr. Lee
reported the history of injury as “back injury.”
In a decision dated June 2, 2006, the Office reviewed the merits of appellant’s claim and
denied modification of its February 15, 2006 decision. The Office again noted the absence of a
well-rationalized medical opinion that her disability after October 10, 2005 was causally related
to her March 25, 2005 employment injury.
On July 10, 2006 appellant requested reconsideration. She admitted, “I don’t really have
new information that I know of at this time,” but she did not know if someone actually talked to
the workers’ compensation coordinator in Dr. Drisko’s office and got new information.
Appellant asked the Office to reconsider her case and to let Dr. Drisko’s coordinator know what
is needed, “as she deals with cases like this daily & they are perplexed by the hold-up in my case
and have tried to straighten this ou[t] for me from the beginning.” Regarding the accepted
condition of low back contusion, appellant noted that the orthopedic doctor diagnosed two other
conditions that the Office never “accepted” and that maybe that was part of the problem.
In a decision dated August 14, 2006, the Office denied appellant’s July 10, 2006 request
for reconsideration. It found that, because her request neither raised substantive legal questions
nor included new and relevant evidence, it was insufficient to warrant a reopening of appellant’s
case for a review of the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1
“Disability” means incapacity, because of employment injury, to earn the wages that the
1

5 U.S.C. § 8102(a).

3

employee was receiving at the time of injury.2 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in her employment, she is entitled to compensation for any loss of
wage-earning capacity resulting from such incapacity.3
A claimant seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,4 including that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
she claims compensation is causally related to that employment injury.5
For each period of disability claimed, the employee has the burden of proving that she
was disabled for work as a result of her accepted employment injury.6 When a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, that opinion
has little probative value and is insufficient to establish causal relationship.7 A claimant’s
burden includes the necessity of furnishing an affirmative opinion from a physician who supports
his or her conclusion with sound medical reasoning. Medical conclusions unsupported by
rationale are of little probative value.8
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.9 The Board has held that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurt too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.10 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.11

2

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB
38 (1948).
3

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

David H. Goss, 32 ECAB 24 (1980).

7

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

8

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

9

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

10

John L. Clark, 32 ECAB 1618 (1981).

11

Fereidoon Kharabi, 52 ECAB 291 (2001).

4

ANALYSIS -- ISSUE 1
Appellant sustained an injury in the performance of duty on March 25, 2005. The Office
accepted her claim for low back contusion and paid benefits. On or about October 28, 2005 she
told her family practitioner, Dr. Appl, that her low back pain worsened “for no apparent reason
or event.” Appellant, therefore, has the burden of proof to establish that this worsening and the
resulting disability are causally related to her March 25, 2005 employment injury.
Dr. Appl indicated that appellant was totally disabled beginning October 11, 2005, but he
did not explain how a low back contusion on March 25, 2005 totally disabled her for work six
months later. On a form report dated October 28, 2005, he offered no opinion on causal
relationship. On another form report of the same date, Dr. Appl indicated that appellant’s
condition was not caused or aggravated by employment activity. Two weeks later, he indicated
that it was. Regardless, checking a box on a form report does not supply the medical rationale
needed to establish causal relationship. Appellant must submit an affirmative opinion from a
physician who supports his or her conclusion with sound medical reasoning. This is where her
claim fails. Dr. Appl stated on November 17, 2005 that, while appellant had no further injury,
“this is most likely related to the injury last spring.” He provided no medical reasoning for this
opinion and the form reports of Dr. Drisko, the orthopedist, and Dr. Lee, the pain management
specialist, add no additional medical rationale to support appellant’s claim.
The medical evidence appellant submitted to support her claim has little probative or
evidentiary value because her physicians offered mere conclusions, opinions without sound
medical explanation. She has not met her burden of proof. The Board will affirm the denial of
appellant’s claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.12 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the “application for reconsideration.”13
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and 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.14

12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.605 (1999).

14

Id. § 10.606.

5

An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.15 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.16
ANALYSIS -- ISSUE 2
Appellant’s July 10, 2006 requested reconsideration meets none of the criteria for
obtaining a merit review of her claim. She stated that she really had no new information.
Appellant simply wanted the Office to let Dr. Drisko’s coordinator know what was needed. She
has the burden of proof to establish the critical element of causal relationship and the Board
trusts that she now knows what is required: a well-reasoned medical opinion clearly explaining
how her March 25, 2005 low back contusion became totally disabling on October 11, 2005 and
for the specific periods claimed thereafter.17 As appellant submitted no new and relevant
evidence with her request for reconsideration, as she advanced no relevant legal argument and as
she failed to show how the Office erroneously applied or interpreted a specific point of law, the
Board will affirm the Office’s decision to deny her request.
CONCLUSION
The Board finds that appellant has not met her burden to establish that her disability
beginning October 11, 2005 is causally related to her March 25, 2005 employment injury. The
Board also finds that the Office properly denied appellant’s July 10, 2006 request for
reconsideration.

15

Id. § 10.607(a).

16

Id. § 10.608.

17

To the extent that her doctors attribute her total disability for work beginning October 11, 2005 to medical
conditions other than the accepted low back contusion, appellant maintains the burden of proof to establish that the
March 25, 2005 incident at work caused or aggravated these conditions.

6

ORDER
IT IS HEREBY ORDERED THAT the August 14, June 2 and February 15, 2006 and
December 30, 2005 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 6, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF LABOR, PENSION &
WELFARE BENEFITS ADMINISTRATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1439
Issued: February 21, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 2, 2006 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated March 9 and May 26, 2006. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 10, 2006 on the grounds that his accepted temporary
aggravation of psychosis and depression had resolved; and (2) whether appellant established that
he had any continuing employment-related disability after March 10, 2006.
FACTUAL HISTORY
This case has previously been before the Board regarding appellant’s cervical and left
shoulder strains and aggravation of cervical disc disease at C6-7 with disc herniation. In a
decision dated July 19, 2000, the Board reversed an Office decision dated July 28, 1997

regarding termination of appellant’s medical benefits. The Board found that a conflict in
medical opinion existed regarding whether appellant continued to be disabled from his
employment-related orthopedic conditions. The Board also found that a conflict existed
regarding appellant’s entitlement to a schedule award for his accepted conditions.1 By order
dated April 23, 2003, the Board remanded the case to the Office to reassemble the case record.2
In a December 24, 2003 decision, the Board vacated a June 19, 2003 Office decision. The Board
found that a conflict remained regarding whether appellant was entitled to a schedule award for
his accepted orthopedic conditions.3 The law and the facts as set forth in the previous Board
decisions and orders are incorporated herein by reference.
Appellant filed claims for employment-related stress. On October 25, 1994 the Office
accepted that he sustained an employment-related aggravation of psychosis and depression. The
accepted factors of employment were that in 1990 he became frustrated due to his inability to
perform newly assigned duties when these were changed for approximately three months due to
an agency reorganization. The Office also accepted that, due to the relocation of his office
during this three-month period, he was exposed to smoke in an open office environment.
Appellant received appropriate compensation and was placed on the periodic rolls.
Appellant came under the care of Dr. Joel Cohen, a Board-certified psychiatrist. In
November 17, 2004 reports, he diagnosed bipolar disorder, mixed and post-traumatic stress
disorder (PTSD) and advised that appellant “certainly continues to have ill effects from his
former employment.” Dr. Cohen advised that he was unable to work in any capacity because he
had paranoid anxiety, could not concentrate, had difficulty processing and retrieving information,
had a low frustration tolerance and was inattentive to detail.
On September 15, 2005 the Office referred appellant to Dr. Bruce Hershfield, Boardcertified in psychiatry for a second opinion evaluation. By reports dated September 30, 2005,
Dr. Hershfield noted appellant’s psychiatric and medical history and performed a mental status
examination. He diagnosed schizoaffective disorder bipolar type, panic disorder with
agoraphobia by history, cognitive disorder, paranoid traits, cervical disc disease and pain by
history and occupational problems by history. Dr. Hershfield could not relate any of these
diagnosed condition to the accepted employment factors, stating that there was nothing about the
work environment that caused appellant’s significant psychiatric presentation. He opined that
appellant did not meet the criteria for PTSD since the trauma he had suffered was not sufficient
under the DSM-IV criteria used to justify a diagnosis of that condition. Dr. Hershfield
1

Docket No. 98-301 (issued July 19, 2000). That claim was adjudicated by the Office under file number
110104429 and the instant claim under file number 110114755, for which appellant has been receiving wage-loss
compensation effective December 13, 1991 although he worked briefly in 1992 and 1993, when he retired. He also
received wage-loss compensation for intermittent absences. Subsequent to the December 24, 2003 decision, by
decision dated August 23, 2004, the Office denied appellant’s reconsideration request of a February 14, 2003
decision regarding his claim for wage-loss compensation for the period August 12 to September 8, 1990. Appellant
did not file an appeal of this decision with the Board. On September 15, 2005 he was granted a schedule award for a
100 percent loss of use of the right upper extremity.
2

Docket No. 03-777 (issued April 23, 2003).

3

Docket No. 03-1692 (issued December 24, 2003).

2

concluded that appellant was actively psychotic and could not return to gainful employment.
However, his disability was not employment related.
Appellant submitted a September 19, 2005 report in which Dr. Asim Haracic, an
attending Board-certified psychiatrist, diagnosed bipolar disorder, mixed and chronic PTSD with
debilitating symptoms.
The Office determined that a conflict in medical evidence was created between the
opinions of Dr. Cohen and Dr. Hershfield as to whether appellant’s current emotional condition
was causally related to employment. On November 7, 2005 it referred him to Dr. Joanna Dorin
Brandt, Board-certified in psychiatry, for an impartial evaluation.4 In January 2, 2006 reports,
Dr. Brandt noted her review of the statement of accepted facts, the medical record, including
psychiatric and medical treatment and the questions provided. She reported a history that at that
time a family member drove appellant to a psychiatric day treatment program five days a week
where he had psychotherapy two times weekly. Appellant’s former wife, who attended the
examination, reported that appellant regularly became highly agitated, was very disorganized,
self-absorbed and uncooperative, did not bathe regularly and did not get along well with others.
She stated that he was very talkative and had trouble stopping. Dr. Brandt performed a mental
status examination and opined that some of appellant’s symptoms were exaggerated. She
disagreed that he had PTSD, stating that he did not meet the criteria under DSM-III or DSM-IV
because the trauma of the accepted factors was not severe enough, noting that the DSM-IV-TR
definition was that “the person experienced, witnessed or was confronted with an event or events
that involved actual or threatened death or serious injury or a threat to the physical integrity of
self or others....” Dr. Brandt also opined that a diagnosis of bipolar disorder did not fully explain
the chronic and persistent nature of appellant’s psychotic symptoms of persecutory delusional
ideation about his employer and his reported hallucinations.
Dr. Brandt diagnosed schizoaffective disorder, bipolar type, malingering, anxiety
disorder, not otherwise specified and chronic pain from cervical disc disease. In answer to
specific Office questions, she noted that appellant had a history of impulsivity, angry outbursts,
overspending and overeating dating back to his teenage years which, Dr. Brandt advised, were
prodromal symptoms of mood disturbance that later coalesced into his current illness. She
agreed with Dr. Hershfield’s assessment that, while they did not know the cause of appellant’s
condition, it was not due to the work environment, noting that his condition worsened after he
stopped work. Dr. Brandt advised that appellant had a chronic illness characterized by both
psychotic, mood disorder and anxiety disorder symptoms, which were not caused by stresses he
encountered at work. Appellant had not worked in over a decade and there was no evidence that
his condition continued to be aggravated by his former employment. His ongoing condition was
not due to the fact that in 1990 his duties were changed or that he encountered cigarette smoke at
work. As appellant remained symptomatic with psychotic symptoms of persecutory delusions
and auditory hallucinations and mania symptoms including irritability and flight of ideas with
significant functional impairment, Dr. Brandt did not anticipate that he would ever reach his
pre-1990 level of functioning or return to work.
4

Drs. Hershfield and Brandt were furnished with a statement of accepted facts, a set of questions and the medical
record.

3

By letter dated January 19, 2006, the Office informed appellant that it proposed to
terminate medical benefits for his emotional condition on the grounds that the medical evidence
establishes that there was no continuing causal relationship between his work and his current
emotional condition. Appellant disagreed with the proposed termination. He submitted
numerous medical reports dating from November 2 to 30, 2005 in which Dr. Haracic and Nancy
Shaffer, Ph.D. reiterated the diagnosis of mixed bipolar disorder and outlined his care at a
psychiatric day facility. He also submitted the first page of a CA-1 form, traumatic injury claim
dated January 2006 for an ongoing stress condition that was accelerated by employment factors.
On March 9, 2006 the Office terminated appellant’s medical benefits for his emotional
condition. The Office continued his wage-loss compensation based on his orthopedic injuries
and also denied the claim that he had submitted in January 2006. The Office found that the
weight of the medical evidence rested with the opinion of Dr. Brandt, the impartial examiner
who found that the employment-related aggravation of appellant’s emotional condition had
ceased.
On April 12, 2006 appellant requested reconsideration and submitted an April 2, 2006
report from Joyce M.L. Harrison, a licensed social worker. In an April 12, 2006 report,
Dr. David T. Hackney, a Board-certified psychiatrist and an associate of Dr. Cohen, advised that
appellant had been exposed to adverse employment conditions from 1975 to 1993 when he was
exposed to second-hand smoke at work. He opined that appellant did not have a schizoaffective
disorder but that his hallucinations were instead caused by his medications. Dr. Hackney stated
that he agreed with the findings and conclusions of a January 30, 2002 report from his facility,
which noted that, when appellant was exposed to an event in 1991 that threatened his physical
and mental integrity, his response was intense fear and helplessness. He continued to have
intrusive, distressing recollections of this event which rendered him incapable of functioning in a
work setting.
Appellant’s symptoms included hypervigilance, irritability, difficulty
concentrating and startled response with periods of abnormally and persistently elevated,
expansive and irritable mood, pressured speech, distractibility and flight of ideas. Dr. Hackney
continued that appellant admitted to occasional verbal altercations and readiness to defend
himself when threatened or insulted during childhood and early adulthood. Appellant
acknowledged other brief incidents of impulsivity such as overspending, overeating and
Dr. Hackney opined that these were of no clinical significance. Appellant had no presentation to
suggest that he had a preexisting condition prior to developing psychiatric symptoms in 1988
when he developed symptoms of PTSD because he was denied the ability to escape or avoid
exposure to toxic second-hand cigarette smoke at work. Appellant was first diagnosed with
bipolar disorder in 1991 and diagnosed PTSD, chronic bipolar disorder, inhalant allergies and
conflicts in workers’ compensation regarding health benefits. Dr. Hackney concluded that
appellant could not return to gainful employment. In a May 10, 2006 report, he diagnosed
PTSD, bipolar disorder and inhalant allergies.
By decision dated May 26, 2006, the Office denied modification of the March 9, 2006
decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment. Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition, which require further medical treatment.5
Section 8123(a) of the Federal Employees’ Compensation Act6 provides that if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.7 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Office properly determined that a conflict in the medical evidence had been created
between the opinions of Board-certified psychiatrists Dr. Cohen, an attending physician, and
Dr. Hershfield who had provided a second opinion evaluation for the Office. They disagreed as
to whether appellant’s current emotional condition was causally related his employment. The
Office properly referred appellant to Dr. Brandt, Board-certified in psychiatry, for an impartial
evaluation.9
The Board finds Dr. Brandt’s report sufficiently well rationalized to support a finding that
appellant’s employment-related emotional condition had resolved.10 The Office met its burden
of proof to terminate appellant’s medical benefits effective March 10, 2006.11 In comprehensive
reports dated January 2, 2006, Dr. Brandt provided a careful and thorough analysis of appellant’s
psychiatric condition. She noted her review of the statement of accepted facts, the medical
record including psychiatric and medical treatment and the questions provided. Dr. Brandt
described appellant’s current treatment program, symptoms and behaviors and performed a
mental status examination. She advised that some of appellant’s symptoms were exaggerated
5

Fred Simpson, 53 ECAB 768 (2002).

6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

8

Manuel Gill, 52 ECAB 282 (2001).

9

Supra note 7.

10

Manuel Gill, supra note 8.

11

Gloria J. Godfrey, 52 ECAB 486 (2001).

5

and opined that he did not have PTSD. Appellant did not meet the criteria under the DSM
standard because the trauma of the accepted factors was not severe enough. The DSM-IV-TR
definition was that “the person experienced, witnessed or was confronted with an event or events
that involved actual or threatened death or serious injury or a threat to the physical integrity of
self or others....” Dr. Brandt also opined that a diagnosis of bipolar disorder did not fully explain
the chronic and persistent nature of appellant’s psychotic symptoms. These included delusional
ideation about his employer and his reported hallucinations. She diagnosed schizoaffective
disorder, bipolar type, malingering, anxiety disorder, not otherwise specified and chronic pain
from cervical disc disease. In answer to specific Office questions, the physician noted that
appellant had a history of impulsivity, angry outbursts, overspending and overeating dating back
to his teenage years. These were prodromal symptoms of mood disturbance that later coalesced
into his current illness. Dr. Brandt agreed with Dr. Hershfield’s assessment that appellant’s
current condition was not aggravated by employment factors, noting that his condition had
worsened since he stopped work over a decade previously. She opined that his condition was not
due to the fact that in 1990 his duties were changed or that he encountered cigarette smoke at
work. Dr. Brandt concluded that, as he remained symptomatic, she did not anticipate that he
would ever reach his pre-1990 level of functioning or return to work.
Dr. Haracic and Dr. Shaffer repeated the diagnoses of bipolar disorder and chronic PTSD
with debilitating symptoms. They did not provide an opinion on whether appellant had an
employment-related condition. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.12 The physicians reports are, therefore, insufficient to overcome the special weight
accorded Dr. Brandt.
Dr. Brandt provided a well rationalized evaluation in which she clearly explained her
findings and conclusion that appellant’s employment-related aggravation had resolved. The
Board, therefore, finds it is entitled to special weight as a referee opinion.13 The Office,
therefore, met its burden of proof to terminate appellant’s compensation benefits effective
March 10, 2006.14
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s medical benefits for his
psychiatric condition, the burden shifted to him to establish that he had any continuing
psychiatric disability causally related to his accepted injuries.15 To establish a causal relationship
between the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.16 Causal relationship is a medical issue and
12

Willie M. Miller, 53 ECAB 697 (2002).

13

Manuel Gill, supra note 8.

14

Id.

15

Id.

16

Id.

6

the medical evidence required to establish a causal relationship is rationalized medical
evidence.17 Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.18
ANALYSIS -- ISSUE 2
The medical evidence relevant to any continuing psychiatric disability includes an
April 2, 2006 report from Ms. Harrison, a licensed social worker. This report, however, is not
competent medical evidence, as a social worker is not a “physician” as defined by section
8101(2) of the Act.19 Dr. Hackney submitted an April 12, 2006 report in which he noted his
disagreement with Dr. Brandt’s opinion. He advised that he agreed with findings and
conclusions made by a colleague in January 2002, Dr. Hackney also practices at the same facility
as Dr. Cohen. Dr. Hackney’s April 12, 2006 report includes the same diagnoses, bipolar disorder
and PTSD, as those provided by Dr. Cohen. He also agreed with Dr. Cohen’s assessment that
appellant continued to be disabled due to employment factors. The submission of an additional
report from an attending physician which essentially repeats earlier findings and conclusions is
insufficient to overcome the weight accorded to an impartial medical specialist’s report.20
Likewise, an additional report from a physician who was on one side of the medical conflict that
an impartial specialist resolved is, by itself, insufficient to overcome the weight accorded to the
report of the impartial medical examiner or to create a new conflict.21 The Board finds that, as
Dr. Hackney acknowledged that he supported findings and conclusions found in a January 2002
report made by a colleague and his April 2006 opinion mirrors that of his colleague Dr. Cohen, it
is insufficient to overcome the special weight accorded to Dr. Brandt, the referee physician. A
subsequently submitted report of a physician on one side of a resolved conflict of medical
opinion is generally insufficient to overcome the weight of the impartial medical specialist or to
create a new conflict of medical opinion.22 The Board, therefore, finds that, as Dr. Hackney’s
opinion is in essence that of Dr. Cohen, appellant did not submit sufficient medical evidence to
establish that he continued to have employment-related residuals of his emotional condition, he
has not met his burden of proof to establish that he was entitled to medical benefits for this
condition after March 10, 2006.23
17

Donna L. Mims, 53 ECAB 730 (2002).

18

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

19

5 U.S.C. § 8101(2); Phillip L. Barnes, 55 ECAB 426 (2004).

20

Roger G. Payne, 55 ECAB 535 (2004).

21

John D. Jackson, 55 ECAB 465 (2004).

22

Richard O’Brien, 53 ECAB 234 (2001).

23

Leslie C. Moore, supra note 18.

7

Regarding the claim filed by appellant in January 2006, the Board notes that appellant
was not alleging any new employment factors and has not worked since 1993. The Board,
therefore, deems this a duplicate claim.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits for his psychiatric condition effective March 10, 2006 and that appellant
failed to meet his burden of proof to establish that he had any employment-related residuals after
March 10, 2006 that would entitle him to benefits.24
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26 and March 9, 2006 be affirmed.
Issued: February 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

24

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider
this evidence, however, as its review of the case is limited to the evidence of record which was before the Office at
the time of its final decision. 20 C.F.R. § 501.2(c).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Minneapolis, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-329
Issued: June 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 1, 2014 appellant filed a timely appeal from the August 22, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant refused an offer of suitable work and is therefore not
entitled to compensation under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 7, 1993 appellant, then a 47-year-old licensed practical nurse, filed an
occupational disease claim alleging that her left leg became numb from her hip to her toes.
1

5 U.S.C. § 8101 et seq.

OWCP accepted her claim for left subtrochanter bursitis and iliosacral strain.2
received compensation for temporary total disability on the periodic rolls.

Appellant

In August 2010, Dr. Raymond R. Fletcher, a Board-certified orthopedic surgeon and
second opinion physician, evaluated appellant and found that she remained totally disabled for
all work. Appellant’s subjective complaints correlated with objective findings and were
supported by several abnormal musculoskeletal findings. There was no evidence of secondary
gain. Appellant demonstrated no nonphysiologic findings. She provided good voluntary effort
and was cooperative during the evaluation. Dr. Fletcher completed a work capacity evaluation
stating that appellant was not able to work. He found that she had reached maximum medical
improvement and that her disability was permanent.
A conflict later arose between Dr. John C. Huntwork, the attending Board-certified
internist specializing in rheumatology, and Dr. Eugene T. Saiter, a Board-certified orthopedic
surgeon and second opinion physician. In May 2012, Dr. Huntwork found that appellant
remained disabled for all work: “I do not think she can do any job, whether part or full time,
with or without restrictions.” He explained that there was no treatment plan to facilitate her
recovery and return to productive, suitable employment because such a plan was not a realistic
expectation, as was established in the past. Dr. Huntwork found appellant’s problems to be
stable and permanent. Dr. Saiter found that the accepted conditions had not resolved and that she
was stable and stationary. He believed there were no forms of treatment that would cause
significant improvement. Nonetheless, Dr. Saiter found that appellant was able to work four
hours a day with restrictions. He completed a work capacity evaluation showing her physical
limitations. Dr. Saiter did not anticipate an increase in the number of hours appellant would be
able to work.
Appellant was separated from the employing establishment and moved from Minnesota
to Mississippi in 1997. In February 2013, the employing establishment contacted the Gulf Coast
Veterans Health Care System in Biloxi, Mississippi, to inquire whether they could place her in a
position that was within her restrictions.3 Gulf Coast advised that it had no positions in which to
place appellant.
The employing establishment then offered appellant a part-time position as a telemetry
monitor technician at her former duty station in Minneapolis. Appellant refused the offer. She
argued it would be a hardship to move from Mississippi. Appellant also argued that she could
not perform the physical demands of the position, which can involve walking, pushing, bending,
standing, and moderate lifting.
The employing establishment requested a suitability determination from OWCP. It
advised that it had attempted to find a federal job within a better commuting area for appellant at
the Gulf Coast Veterans Health Care System in Biloxi. The employing establishment noted that
the medical center in Jackson, Mississippi, was a three-hour drive from Gulfport.
2

OWCP later identified the accepted conditions as enthesopathy of the left hip region, disorders of sacrum, and
lumbosacral spondylosis without myelopathy.
3

Appellant had not renewed her license.

2

To resolve whether appellant was totally disabled for all work, OWCP referred her,
together with the case record and a statement of accepted facts, to Dr. Donald C. Faust, a Boardcertified orthopedic surgeon with a subspecialty in hand surgery, who evaluated her on
October 29, 2013. Dr. Faust related her history, functional capacities, and present complaints.
Appellant was able to drive and get around. She was able to walk about the house. Appellant
could take out light trash, no more than 10 pounds. Surgery had helped her back pain.
Dr. Faust described his findings on physical examination. Appellant walked well with
minimal dorsiflexion weakness apparent on the left. She was able to heel and toe stand,
dorsiflexing her toes better than her ankle. Appellant showed no paraspinous spasm. She could
laterally bend her back 40 degrees, extend 10 degrees, and forward flex 45 degrees both standing
and kneeling. Appellant had diminished pinprick sensation on the lateral aspect of the left lower
extremity with weak dorsiflexion of the ankle. Straight leg raising hurt at 90 degrees. An
evaluation of hip or sacroiliac joint pathology was negative. Appellant had no tenderness along
the trochanter or sciatic notch.
Dr. Faust reviewed appellant’s medical record, including the reports of Dr. Fletcher,
Dr. Huntwork, and Dr. Saiter. He noted that she appeared to be active and independent.
Dr. Faust believed that the accepted trochanter bursitis had resolved, but appellant still suffered
from left foot weakness related to her 1993 work exposure. He also found that she was capable
of gainful employment “as outlined in her work capacity evaluation.” When asked specifically
about the conflict between Dr. Huntwork and Dr. Saiter, Dr. Faust repeated that he thought
appellant was capable of gainful employment. Specifically, he found that she was capable of
performing the duties of the offered position of telemetry monitor technician. Dr. Faust added:
“I would restrict [appellant] from lifting more than 20 [pounds] and would not require her to sit
for more than 1 to 1/2 hour[s] with a 5[-] to 10[-]minute break.”
In a supplemental report, Dr. Faust clarified that appellant was capable of performing the
modified work for eight hours a day.
On February 25, 2014 the employing establishment offered appellant a full-time position
as a telemetry monitor technician at her former duty station in Minneapolis. It advised that the
Gulf Coast Veterans Health Care System in her commuting area had been contacted and “at the
present time” did not have any vacancies that would be appropriate for her and her restrictions.
The employing establishment informed appellant that her relocation expenses would be
authorized and paid by the Veterans Affairs Health Care System in Minneapolis.
Appellant refused the job offer. She explained that it would be an emotional hardship for
her to leave her significant other, with whom she had lived for the last 17 years. Appellant also
argued that she could no longer perform the offered job as of January 2014 because of her low
back.4 She had to have a lumbar nerve block in February and was to have it repeated to hold off
her back pain so she could walk. Appellant noted that she was seeking retirement benefits.
4

In March 2014, appellant informed OWCP of an incident in which she bent over in a recliner to pick up a laptop
and felt a painful pull in her back. An x-ray showed severe stenosis. Appellant’s doctors told her not to bend at all,
as it was pressing on her nerves. Appellant had eight injections after the incident and was having some bladder
incontinence at night.

3

OWCP notified appellant that it had reviewed the job offer and found it suitable to the
medical limitations given by Dr. Faust in his October 29, 2013 report because the work duties
were well within the sedentary level. It contacted the employing establishment to confirm that
the offered position remained available. After notifying appellant of the provisions of 5 U.S.C.
§ 8106(c)(2), OWCP advised that appellant had 30 days to accept the offer or provide a written
explanation for not accepting.
In June 2014, Dr. Huntwork provided a report that was nearly identical to his report in
May 2012. He added his understanding that appellant had an independent medical evaluation at
some point, “but the nature of her problems over time are such that, in my opinion, they could
not be adequately assessed by a single ad hoc evaluation, no matter how competent the
examiner.”
In July 2014, OWCP informed appellant that it had considered the reasons she provided
for refusing to accept the offered position and did not find them to be valid. It advised that the
position remained available and that she now had 15 days to accept and report to the position.
“If you do not accept and report to the position during the allotted period, your entitlement to
wage loss and schedule award benefits will be terminated.”
Dr. Huntwork submitted an office note dated May 20, 2014. Appellant presented with
osteoarthritis affecting the low back and hip, the symptoms of which were intermittent and the
severity of which was incapacitating. The primary symptoms were pain, stiffness, and functional
limitations. Associated symptoms included fatigue, morning stiffness, and urinary symptoms.
Problems in the past few months included an episode of severe back and gluteal pain associated
with incontinence. Appellant received pain injections, which substantially relieved her pain, and
she was no longer incontinent. Noting that she was sent by OWCP to a physician who found she
could work eight hours a day including two hours of lifting and carrying weights up to 20
pounds, Dr. Huntwork found that the basis of those conclusions, in a single contact with the
patient and with her history, was obscure. He diagnosed lumbago and thoracic or lumbar
radiculitis. “The idea that [appellant] has recovered the capacity to work, lost 18 years ago at
this point, seems absurd. If one wanted to argue that she was never incapacitated, that would at
least be intellectually honest, if, in my opinion, erroneous.” Dr. Huntwork advised that appellant
was to limit her weight bearing. Appellant was to avoid activities that required repetitive
bending, lifting, stooping, pushing, and pulling. “Even if she could accomplish these once or
twice, or for a brief period of time, her history, age, etc. preclude her from engaging in such
activities which would only invite additional injuries.”
After confirming once more that the position remained available, OWCP issued a
decision on August 22, 2014 terminating appellant’s wage-loss compensation and entitlement to
any schedule award for refusing suitable work.
On appeal, appellant notes that Dr. Huntwork and two workers’ compensation doctors
found that she could not work. She asks the Board to review the medical reports from
Dr. Fletcher, Dr. Huntwork, Dr. Saiter, and Dr. Faust.

4

LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by,
or secured for her is not entitled to compensation.5 OWCP has authority under this section to
terminate compensation for any partially disabled employee who refuses or neglects suitable
work when it is offered. Before compensation can be terminated, however, it has the burden of
demonstrating that the employee can work and setting forth the specific restrictions, if any, on
the employee’s ability to work. OWCP also has the burden of establishing that a position has
been offered within the employee’s work restrictions and setting forth the specific job
requirements of the position.6 In other words, to justify termination of compensation under
Section 8106(c)(2), which is a penalty provision, it has the burden of showing that the work
offered to and refused or neglected by appellant was suitable.7
If possible, the employing establishment should offer suitable reemployment in the
location where the employee currently resides. If this is not practical, it may offer suitable
reemployment at the employee’s former duty station or other location.8
If the job offer is for a site outside of the claimant’s residential area, the employing
establishment must document that it first searched for suitable employment in the claimant’s
geographic area before it settled for a position outside of it. It must provide this information to
OWCP.9
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.10 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.11
ANALYSIS
As Dr. Fletcher, the second opinion orthopedic surgeon, confirmed in 2010, appellant
was totally disabled for all work. Although he believed that her disability was permanent, a
5

5 U.S.C. § 8106(c)(2).

6

Frank J. Sell, Jr., 34 ECAB 547 (1983).

7

Glen L. Sinclair, 36 ECAB 664 (1985).

8

20 C.F.R. § 10.508.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4.a(2)
(June 2013).
10

5 U.S.C. § 8123(a).

11

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

5

conflict in medical opinion later arose between Dr. Huntwork, the attending internist, and
Dr. Saiter, the second opinion orthopedic surgeon, on the extent of appellant’s capacity to
perform work. To resolve this conflict, OWCP referred appellant to an impartial medical
specialist, Dr. Faust, an orthopedic surgeon.
It was Dr. Faust’s opinion that appellant was no longer totally disabled for all work. He
noted that she appeared to be active and independent. Appellant was able to drive and get
around and walk about the house and take out light trash. Surgery in 2009 had helped her back
pain. Appellant still had minimal dorsiflexion weakness apparent on the left. She also had
diminished pinprick sensation on the lateral aspect of the left lower extremity, and positive
straight leg raising hurt at 90 degrees, but she walked well and showed no paraspinous spasm.
Although her claim was accepted for left subtrochanter bursitis and iliosacral strain, appellant
now showed no tenderness along the trochanter or sciatic notch, and an evaluation of hip or
sacroiliac pathology was negative.
The evidence thus supported Dr. Faust’s opinion that the accepted trochanter bursitis had
resolved and that appellant possessed functional capacities that allowed her to perform some
kind of gainful employment. Specifically, Dr. Faust found that appellant was capable of
performing the duties of the offered position of telemetry monitor technician. He found that she
could perform these duties full time, so long as she lifted no more than 20 pounds and took
occasional short breaks while sitting.
OWCP provided Dr. Faust with appellant’s case record and a statement of accepted facts
so that he could base his opinion on a proper factual and medical history. Dr. Faust reviewed the
conflict between Dr. Huntwork and Dr. Saiter and came to at an unequivocal conclusion. His
opinion that appellant could perform the duties of the offered position is consistent with the
history of her functional capacities and her findings on physical examination. The Board finds
that Dr. Faust’s opinion is sufficiently well rationalized that it must be accorded special weight in
resolving the conflict over the extent of appellant’s capacity to work.
Dr. Huntwork objected to Dr. Faust’s conclusion for two reasons. Appellant had been
totally disabled for all work in the past, so it seemed absurd to think that she could recover any
capability to work. Dr. Huntwork did not believe that a physician could reach such a conclusion
having evaluated appellant only once.
Dr. Huntwork did not explain why a single, current evaluation of appellant was
insufficient to evaluate her current physical condition. Also, Dr. Faust did more than evaluate
her. He reviewed appellant’s medical record, including the reports of Dr. Huntwork. Dr. Faust
reviewed the statement of accepted facts. He considered the history that appellant had related to
him. Dr. Huntwork did not deny that she had the capacity to perform activities of daily living,
with some limits. He did not explain why, possessed of these capacities, appellant could not
perform sedentary duty with restrictions and occasional breaks. Dr. Huntwork advised that she
was to limit weight bearing and avoid repetitive bending, lifting, stooping, pushing, and pulling,
but he did not explain how these restrictions were incompatible with a sedentary position
monitoring telemetry.

6

The Board finds that the weight of the medical opinion evidence establishes the medical
suitability of the offered position of telemetry monitor technician. The employing establishment
offered the job, but appellant refused, in part because she had lived in Mississippi since 1997,
and the offered position was located at her former duty station in Minnesota.
As noted previously, if the job offer is for a site outside of the claimant’s residential area,
the employing establishment must document that it first searched for suitable employment in the
claimant’s geographic area before it settled for a position outside of it. In this case, it looked for
suitable employment at the Gulf Coast Veterans Health Care System in Biloxi, Mississippi, a
mere 13 miles from Gulfport, but this was in February 2013. A full year later, in February 2014,
the employing establishment offered appellant the telemetry monitor technician position in
Minnesota. The offer stated that Gulf Coast did not have any vacancies “at the present time,” but
the employing establishment failed to document this. There is no evidence that the employing
establishment conducted a current search for suitable employment in appellant’s geographic area
prior to the February 2014 offer.
Given the penalty under 5 U.S.C. § 8106(c)(2), the Board finds that not only must the
availability of the offered position be current,12 but the unavailability of suitable employment in
the claimant’s geographic area must be current as well. Without both, an offer outside the
geographic area cannot be considered suitable. The assertion made in the February 2014 job
offer that there were no appropriate vacancies in Biloxi “at the present time” is simply not
established. The contact made with Gulf Coast Veterans Affairs Health Care System in
February 2013 had grown stale. There is no evidence that the employing establishment made
any current search for suitable employment in appellant’s geographic area before settling on a
position in Minnesota.
In the case of M.R., Docket No. 11-1566 (issued February 8, 2012), the claimant moved
to a different region within the state of New York after her injury. A few months later she
declined a job offer at her previous duty station contending that it was unsuitable because it was
approximately 230 miles away from her current residence. The Board reversed OWCP’s
termination of wage-loss compensation under 5 U.S.C. § 8106(c)(2) as OWCP had failed to
determine whether suitable employment was possible in or around the claimant’s residence at the
time of the job offer. The Board held that it should have developed this aspect of the case before
finding the offer suitable.
Although OWCP did make an attempt in the present case to determine whether suitable
employment was possible in or around appellant’s current location that attempt was a year old
and no longer current. It did not reasonably reflect conditions at the time of the February 2014
job offer. Accordingly, the Board finds that the offered position was not established to be
suitable. OWCP failed to meet its burden to justify imposing the penalty under 5 U.S.C.
§ 8106(c)(2). The Board will, therefore, reverse OWCP’s August 22, 2014 decision.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.0814.4.d
(June 2013). After assessing the position and determining that it is a suitable offer of employment, OWCP must
confirm with the employing establishment that the job remains open and available to the claimant. This must be
documented in the file.

7

CONCLUSION
The Board finds that appellant did not refuse an offer of suitable work. OWCP did not
establish that the work offered to and refused by her was suitable. Although the weight of the
medical opinion evidence established the position’s medical suitability, the evidence failed to
establish that the employing establishment conducted any current search for suitable employment
in appellant’s geographic area.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Pearl Harbor, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1307
Issued: October 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 7, 2016 appellant filed a timely appeal from a May 20, 2016 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
since January 11, 2013, the date of the most recent OWCP merit decision, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record, as untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 2012 appellant, then a 58-year-old safety and occupational health specialist,
filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss as a
result of performing his job duties. He became aware of his condition and realized that it was
causally related to his employment on April 20, 2012. Appellant did not stop work.
By letter dated July 10, 2012, OWCP advised appellant of the type of factual and medical
evidence needed to establish his claim. It specifically requested that he substantiate the factual
elements of his claim and respond to a questionnaire.
In a statement received on July 11, 2012, appellant noted that since June 2007 he had
worked as a safety and occupational health specialist and he listed his employment and sources
of noise exposure for periods since 1982.
Appellant submitted various employing establishment audiograms from 1981 to 2005
which revealed progressive bilateral high-frequency sensorineural hearing loss. He noted that
during his employment from 1982 to the present time he was issued hearing protection in the
form of earplugs and earmuffs.
By letter dated September 11, 2012, OWCP referred appellant to Dr. Meredith Pang, a
Board-certified otolaryngologist, for otologic examination and audiological evaluation. Dr. Pang
performed an otologic evaluation of appellant on October 4, 2012 and audiometric testing was
conducted on the doctor’s behalf on the same date. Testing at the frequency levels of 500, 1,000,
2,000, and 3,000 revealed the following: right ear 15, 15, 15, and 10 decibels; left ear 15, 15, 15,
and 20 decibels. Dr. Pang determined that appellant sustained very mild bilateral sensorineural
hearing loss due to workplace exposure to hazardous noise. She noted that appellant was not a
candidate for hearing amplification.
On November 20, 2012 an OWCP medical adviser reviewed Dr. Pang’s report and the
audiometric test of October 4, 2012. He concluded that in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment,2
(A.M.A., Guides), appellant had bilateral high-frequency sensorineural hearing loss. The
medical adviser calculated the schedule award and concluded that appellant had zero percent
hearing loss in the right ear and zero percent hearing loss in the left ear and zero percent binaural
hearing loss. He recommended that hearing aids not be authorized.
By decision dated December 14, 2012, OWCP accepted that appellant’s claim for
bilateral sensorineural hearing loss was due to workplace exposure to noise. The decision
indicated that appellant would benefit from hearing aids and advised him of how to proceed if he
wished to request authorization.
On January 2, 2013 appellant filed a claim for a schedule award (Form CA-7).

2

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

2

In a decision dated January 11, 2013, OWCP found that, although appellant’s hearing
loss was employment related, it was not severe enough to be considered ratable for purposes of a
schedule award. It also found that the weight of the medical evidence did not establish that he
would benefit from hearing aids.
In an undated statement received on February 12, 2016, appellant advised that he was
following-up on his hearing loss claim and indicated that the December 14, 2012 decision noted
that he would benefit from hearing aids but he had not been contacted by OWCP.
In a letter dated March 11, 2016, OWCP advised appellant that the January 11, 2013
decision noted that he was not a candidate for hearing aids. It attached a copy of the decision.
In an appeal request form dated March 20, 2016 and postmarked March 3, 2016,
appellant requested a review of the written record by an OWCP hearing representative. In an
accompanying letter, he indicated that he was appealing his claim based on the December 14,
2012 decision which noted his claim was accepted for hearing loss causally related to his
employment. Appellant again stated that OWCP’s decision noted that he would benefit from
hearing aids and reiterated that he had not heard anything further about this claim due to his
change in jobs.
In a decision dated May 20, 2016, OWCP denied appellant’s request for a review of the
written record as untimely filed. Appellant was informed that his case had been considered in
relation to the issues involved, and that the request was further denied because the issues in this
case could be addressed by requesting reconsideration from OWCP and submitting evidence not
previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation 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.3
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.4 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

3

ANALYSIS
Appellant requested a review of the written record on March 23, 2016. This was more
than 30 days after the January 11, 2013 OWCP decision. Section 8124(b)(1) is unequivocal on
the time limitation for requesting a hearing.7 Because the hearing request was not untimely filed,
appellant was not entitled to a review of the written record as a matter of right.
OWCP has the discretionary power to grant an oral hearing or review of the written
record when a claimant is not entitled to one as a matter of right. It exercised this discretion in
its May 20, 2016 decision, finding that appellant’s issue could be addressed by requesting
reconsideration and submitting additional evidence. This basis for denying his request for a
review of the written record is a proper exercise of OWCP’s authority.8 Accordingly, the Board
finds that OWCP properly denied appellant’s request for a review of the written record, as
untimely filed.
On appeal, appellant claims that his hearing loss was directly related to his job and
OWCP accepted his claim for work-related hearing loss. He also claims that he would benefit
from the use of hearing aids. However, as noted, the Board does not have jurisdiction over the
merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record, as untimely filed.

7

William F. Osborne, 46 ECAB 198 (1994).

8

Mary B. Moss, 40 ECAB 640, 647 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5