United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 07-2085
Issued: February 7, 2008

Case Submitted on the Record

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

JURISDICTION
On August 9, 2007 appellant filed a timely appeal of a July 30, 2007 merit decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of her medical benefits and also denied appellant’s claim for partial disability during
the period August 2004 through August 2005. 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 properly terminated appellant’s medical benefits
effective April 21, 2006 on the grounds that she no longer had any residuals causally related to
her employment-related April 5, 1982 employment injury; and (2) whether appellant has
established that she has any continuing residuals or disability causally related to the April 5,
1982 employment injury; and (3) whether appellant has established that she was partially
disabled during the period August 2004 through August 2005.

FACTUAL HISTORY
On April 5, 2002 appellant, then a 44-year-old clerk, sustained a hernia as a result of
pulling a bulk mail carrier. She noted that the hernia was located near the site of a previous
June 25, 2001 surgery. Appellant stopped work on April 5, 2002 and returned to work on
April 13, 2002.
In an April 25, 2002 medical report, Dr. Douglas J. Kaderabek, an attending Boardcertified surgeon, stated that appellant sustained a ventral hernia and back strain. He restricted
her from lifting and carrying more than 30 pounds. Dr. Kaderabek indicated that appellant’s
regular job required her to lift and carry up to 70 pounds. Appellant accepted the employing
establishment’s offer for a limited-duty position which was based on Dr. Kaderabek’s April 25,
2002 report and returned to work on April 13, 2002. By letter dated July 23, 2002, the
employing establishment issued a notice of removal to appellant based on her unsatisfactory
absence from work from May 23 to June 29, 2002.
By letter dated March 14, 2003, the Office accepted appellant’s claim for ventral hernia.1
On August 21, 2003 Dr. Kaderabek released appellant to return to work on
August 26, 2003. She was restricted from lifting more than 25 pounds.
On December 7, 2003 appellant filed a claim alleging that she sustained a recurrence of
disability from August 14 through 25, 2003. She returned to work on August 26, 2003. By letter
dated January 21, 2004, the Office advised appellant that the evidence submitted was insufficient
to establish her recurrence of disability claim. It addressed the factual and medical evidence she
needed to submit to establish her claim.
In a January 15, 2004 report, Dr. Kaderabek stated that appellant was six weeks’ status
post combined abdominoplasty and ventral hernia repair. He related that her surgical wounds
were mostly closed and well healed. Appellant could return to work and was restricted from
lifting or carrying more than 30 pounds. He would follow appellant on a yearly basis for her
bariatric surgery. By letter dated January 23, 2004, the employing establishment requested that
Dr. Kaderabek provide whether appellant’s restrictions were solely due to her employmentrelated ventral hernia or due to her nonwork-related abdominoplasty and/or bariatric surgery.
In a February 13, 2004 report, which was received by the Office on March 11, 2004,
Dr. Kaderabek stated that appellant’s 30-pound restriction was indefinite and based on the repair
of her ventral hernia. She continued to experience pain along her incision if she tried to exert
herself or lift anything heavy. Dr. Kaderabek concluded that appellant had reached maximum
medical improvement.
By letter dated March 25, 2004, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions, to Dr. Berj Antreasian, a Board-certified
internist, for a second opinion medical examination to determine whether appellant had any
residuals causally related to her accepted employment-related ventral hernia.
1

The Office authorized appellant’s December 12, 2003 surgery to repair her ventral hernia.

2

By decision dated May 3, 2004, the Office found that appellant did not sustain a
recurrence of disability from August 14 through 26, 2003 due to her April 5, 1982 employment
injury.
On June 2, 2004 the Office received Dr. Antreasian’s April 12, 2004 report. He reviewed
a history of appellant’s April 5, 1982 employment injury, medical treatment, and social and
family background. Dr. Antreasian noted her chief complaint of pain in both knees. He reported
essentially normal findings on physical examination. Dr. Antreasian found no evidence of a
ventral hernia. He noted appellant’s complaint of residual discomfort from the hernia surgery
with slight discomfort on lifting heavy objects. Dr. Antreasian stated that she could perform her
usual work duties if they did not require her to lift more than 30 pounds. He stated that the
restriction was due to the accepted employment injury. Dr. Antreasian recommended that
appellant wear an abdominal support to reduce her discomfort. He concluded that there was no
objective evidence to support appellant’s disability for work due to discomfort in her knees.
In a May 14, 2004 report, Dr. Antreasian clarified his recommendation regarding the use
of abdominal support. He stated that appellant’s discomfort was minimal and that she had
reached maximum medical improvement. Dr. Antreasian opined that no further treatment of the
employment-related ventral hernia was required.
On June 15, 2004 the Office received appellant’s May 7, 2004 request for an oral hearing
before an Office hearing representative regarding the May 3, 2004 decision.
By decision dated July 7, 2005, an Office hearing representative set aside the Office’s
May 3, 2004 decision and remanded the case for further medical development. The hearing
representative found that Dr. Antreasian’s April 12, 2004 report was not clear as to whether
appellant’s lifting restriction was due to residuals of the accepted employment injury. If it was
determined that the restriction was work related, then the Office should determine whether
appellant was entitled to compensation. The hearing representative stated that this issue did not
relate to the period August 2003 through June 2004 because appellant testified at an April 19,
2005 hearing that she received back pay for this period as a result of a settlement agreement of a
grievance that she filed against the employing establishment. At the hearing, she noted that in
August 2004 the employing establishment changed her work shift from 12:00 p.m. to 8:30 p.m.
to 5:30 p.m. to 2:00 a.m. which resulted in a loss of four and one-half hours of work per day.
Appellant testified that she could not work all the hours of her new shift due to her sleep apnea
condition. The hearing representative noted that an offer of light-duty work must consider not
only the accepted employment condition, but also nonemployment-related conditions. He
instructed appellant to submit medical evidence related to her inability to work night hours.
In a July 19, 2005 letter, the Office requested that Dr. Antreasian clarify his opinion
regarding the causal relationship between appellant’s work restriction and accepted employment
injury and whether appellant had returned to her preinjury physical state.
By letter dated August 1, 2005, Dr. R.B. Patel, an employing establishment physician,
submitted medical literature regarding sleep apnea.

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On September 16, 2005 the Office was advised that Dr. Antreasian was no longer in
practice. By letter dated September 21, 2005, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to Dr. Abdolaziz M. Ardalan,
a Board-certified surgeon, for a second opinion medical examination.
In a December 5, 2005 report, Dr. Ardalan reviewed a history of appellant’s abdominal
surgeries including her hernia repair. He reported normal findings on physical examination.
Dr. Ardalan stated that it was not advisable that appellant lift more than 30 to 40 pounds at a time
based on her hernia repair. He stated that higher weight with more frequency increased the
chance of a recurrence of a hernia. Dr. Ardalan opined that, at the time of his examination,
appellant did not sustain a recurrence of the employment-related ventral hernia. He related that
she should be able to perform the duties of a distribution clerk provided that the weight
restriction was considered. Dr. Ardalan concluded that appellant had reached maximum medical
improvement with regard to her employment-related hernia repair.
By letter dated February 3, 2006, the Office requested that Dr. Ardalan address whether
appellant had any measurable objective evidence of active pathology and disability due to the
accepted employment injury. The Office stated that, if this was not established then, were the
restrictions set forth in his December 5, 2005 report prophylactic in nature and not due to the
employment-related condition.
In a February 10, 2006 report, Dr. Ardalan stated that appellant did not sustain a
recurrence of her repaired ventral hernia. He found no clinical evidence of residual pathology or
disability related to the hernia repair. Dr. Ardalan stated that the 30- to 40-pound lifting
restriction was solely prophylactic because the scar of the repair did not have the same tensile
strength as normal tissue.
By letter dated February 21, 2006, the Office requested that Dr. Kaderabek review and
comment on Dr. Ardalan’s reports. In a February 27, 2006 report, Dr. Kaderabek stated that he
agreed with Dr. Ardalan’s findings.
By letter dated March 13, 2006, the Office issued a notice of proposed termination of
appellant’s compensation. It found that Dr. Ardalan’s opinion, as supported by Dr. Kaderabek,
constituted the weight of the medical opinion evidence in establishing that she no longer had any
residuals of her April 5, 1982 employment injury. The Office found that the restrictions set forth
by Dr. Ardalan were prophylactic in nature and, thus, were not a compensable factor of
appellant’s employment. It also found that appellant’s sleep apnea condition was not work
related and, thus, she was not entitled to wage-loss compensation for partial disability because
this condition prevented her from working at night. The Office provided 30 days in which
appellant could respond to the proposed action. She did not respond within the allotted time
period.
By decision dated April 24, 2006, the Office terminated appellant’s compensation
effective April 21, 2006. On May 6, 2006 appellant requested an oral hearing before a hearing
representative.

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In an April 12, 2006 letter, appellant responded to the Office’s March 13, 2006 proposed
termination notice. She contended that she was entitled to compensation for lost wages.
Appellant stated that she would have been able to perform her regular work duties if
Dr. Antreasian had not placed restrictions on her which caused the employing establishment to
assign her light-duty work.
In a July 26, 2005 report, Dr. Michael G. Lykens, a Board-certified internist, opined that
appellant should be assigned day shift work due to her sleep apnea condition. In a May 14, 2004
disability certificate, Dr. Kaderabek stated that appellant would be able to return to work on
May 17, 2004 with no restrictions. Following the hearing, appellant submitted documents
related to her assignment of limited duty at the employing establishment.
In a July 30, 2007 decision, an Office hearing representative affirmed the April 24, 2006
decision. The hearing representative noted that the Office’s decision terminated medical benefits
only because she was not receiving disability compensation. He found that appellant no longer
had any residuals of her April 5, 1982 employment injury based on the medical opinions of
Dr. Kaderabek and Dr. Ardalan. The hearing representative further found that appellant was not
entitled to compensation for the period August 2004 to August 2005. He found that
Dr. Kaderabek’s May 14, 2004 report established that appellant was not disabled during the
claimed period.
LEGAL PRECEDENT -- ISSUE 1
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 the employee no longer has residuals of an employment-related condition, which
require further medical treatment.2
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate authorization for
medical benefits based on the opinion of Dr. Ardalan, an Office referral physician, who reviewed
a history of appellant’s April 5, 1982 employment-related ventral hernia. Dr. Ardalan reported
his normal findings physical examination and opined that appellant had fully recovered from her
accepted employment injury. He explained that there was no objective evidence of residuals or
disability causally related to the employment-related injury. Dr. Ardalan stated that his 30 to 40
pound work restriction was solely prophylactic in nature.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.3 Dr. Ardalan fully discussed the history of injury and explained
that there were no objective findings to establish that appellant had any continuing employment2

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); John F. Glynn, 53 ECAB 562 (2002).

3

See Ann C. Leanza, 48 ECAB 115 (1996).

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related residuals. The Board finds that Dr. Ardalan’s opinion is detailed, well rationalized and
based upon a complete and accurate history. Moreover, his findings were supported by
Dr. Kaderabek, appellant’s attending physician, who reviewed Dr. Ardalan’s reports and agreed
that appellant no longer had any residuals of her accepted employment injury. The Board finds
that Dr. Ardalan’s opinion represents the weight of the medical evidence in finding that appellant
no longer has any residuals causally related to her employment-related ventral hernia. The
Board, therefore, finds that the Office met its burden of proof in this case.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any residuals causally related to her accepted
injury.4 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.5 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.6 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.7 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.8
ANALYSIS -- ISSUE 2
The relevant medical evidence regarding continuing employment-related residuals
submitted by appellant after April 24, 2006 consists of Dr. Lykens’ July 26, 2005 report which
stated that appellant should be assigned day shift work due to her sleep apnea condition. The
Board notes that the Office has not accepted appellant’s claim for sleep apnea. Dr. Lykens did
not provide any opinion to establish that the diagnosed condition was causally related to
appellant’s April 5, 1982 employment-related ventral hernia. Dr. Kaderabek’s May 14, 2004
disability certificate stated that appellant would be able to return to work on May 17, 2004 with
no restrictions. He did not opine that she had any continuing residuals due to her accepted
employment injury.

4

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
5

See Manuel Gill, 52 ECAB 282 (2001).

6

Elizabeth Stanislav, 49 ECAB 540 (1998).

7

Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

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The Board finds that appellant did not submit the necessary rationalized medical evidence
to substantiate that the claimed continuing residuals on or after April 24, 2006 were causally
related to her April 5, 1982 employment injury.
LEGAL PRECEDENT -- ISSUE 3
An employee seeking benefits under the Federal Employees’ Compensation Act9 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence.10
For each period of disability claimed, the employee has the burden of establishing that she was
disabled for work as a result of the accepted employment injury.11 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.12
Under the Act the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.13 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.14 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.15 When, however, the medical evidence establishes that the residuals or sequela 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 wages.
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 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
9

5 U.S.C. §§ 8101-8193.

10

See Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); see also Nathaniel
Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).
11

See Amelia S. Jefferson, supra note 10; see also David H. Goss, 32 ECAB 24 (1980).

12

See Edward H. Horton, 41 ECAB 301 (1989).

13

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Bobbie F. Cowart, supra note 8; Conard
Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).
14

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

15

Merle J. Marceau, 53 ECAB 197 (2001).

16

See Manuel Gill, supra note 5.

17

Elizabeth Stanislav, supra note 6.

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whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors.18 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.19
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.20
ANALYSIS -- ISSUE 3
Appellant claimed that she was partially disabled for work during the period August 2004
to August 2005. However, she did not submit medical evidence demonstrating partial disability
for this period of time due to her accepted ventral hernia condition.
The medical literature submitted by Dr. Patel is insufficient to establish appellant’s claim
of continuing residuals. The Board has held that newspaper clippings, medical texts and excerpts
from publications are of no evidentiary value in establishing the causal relationship between a
claimed condition and an employee’s federal employment as such materials are of general
application and are not determinative of whether the specific condition claimed is related to the
particular employment factors alleged by the employee.21
Appellant has failed to submit any rationalized medical opinion evidence establishing
that she was unable to work during the claimed period. She has failed to establish that she was
disabled and thus, is not entitled to wage-loss compensation for the period claimed. The Board
finds that appellant has not established her claim for wage-loss compensation for the period
August 2004 to August 2005.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits effective April 21, 2006. The Board further finds that appellant did not establish
continuing employment-related residuals after April 21, 2006. Lastly, the Board finds that
appellant has not established entitlement to wage-loss benefits for the period August 2004 to
August 2005.

18

Kathryn E. Demarsh, supra note 7.

19

Bobbie F. Cowart, supra note 8.

20

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

21

Gloria J. McPherson, 51 ECAB 441 (2000); William C. Bush, 40 ECAB 1064, 1075 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the July 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF DEFENSE, CAMP
LEJEUNE SCHOOL, Camp Lejeune , NC
Employer
__________________________________________
Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0554
Issued: October 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On January 15, 2019 appellant, through counsel, filed a timely appeal from a
September 26, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 19-0554.
On April 10, 2018 appellant, then a 55-year-old custodial worker, filed an occupational
disease claim (Form CA-2) alleging a back injury due to factors of his federal employment,
repetitive work activities over a period of years. He noted that he first became aware of his claimed
condition on January 1, 2000, but did not realize the connection to his federal employment until
August 20, 2009. Appellant stopped work on September 30, 2015.
Appellant has three prior OWCP claims accepted for lumbar sprain. On December 16,
2009 OWCP accepted that appellant sustained a lumbar sprain due to traumatic employment injury
under OWCP File No. xxxxxx682. Under OWCP File No. xxxxxx987, it accepted a lumbar sprain
1

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

due to a traumatic employment injury on January 17, 2014. On June 14, 2014 OWCP accepted a
lumbar sprain due to a traumatic employment injury under OWCP File No. xxxxxx620.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 2 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 3 Herein, appellant has three
accepted claims for lumbar sprains, assigned OWCP File Nos. xxxxxx682, xxxxxx987, and
xxxxxx620. He then filed an occupational disease claim for the same body part, assigned OWCP
File No. xxxxxx546, which is the claim presently before the Board. The evidence pertaining to
OWCP File Nos. xxxxxx682, xxxxxx987, and xxxxxx620, however, is not part of the case record
presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administrative ly
combine the current case record with OWCP File Nos. xxxxxx682, xxxxxx987, and xxxxxx620,
and determine whether appellant has provided sufficient rationalized medical evidence to establish
a back condition causally related to factors of his federal employment. Following this and such
further development as OWCP deems necessary, it shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the September 26, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3

Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T.,
Docket No. 17-0432 (issued August 17, 2018).

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Issued: October 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
TENNESSEE VALLEY AUTHORITY, ALLEN
FOSSIL PLANT, Memphis, TN, Employer
__________________________________________

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

Docket No. 09-1223
Issued: January 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 7, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 22, 2008, which denied his claim for a
schedule award. He also appealed a decision which denied merit review. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award in this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim for a schedule
award for hearing loss; and (2) whether the Office properly denied appellant’s request for
reconsideration.
FACTUAL HISTORY
On April 8, 2008 appellant, then a 57-year-old laborer, filed a claim alleging that he
sustained permanent hearing loss while in the performance of duty. He became aware of his
hearing loss on April 3, 2008 and continues to be exposed to noise at his job.

On May 12, 2008 the Office requested additional medical evidence from appellant stating
that the initial information submitted was insufficient to establish an injury. It also requested
information from the employing establishment addressing appellant’s claim.
The employing establishment submitted audiograms taken on its behalf from March 10,
1983 to August 17, 2007 which revealed mildly progressive hearing loss. Also submitted were
employer medical records from May 4, 1977 to April 20, 1987 which noted appellant
participated in an occupational health and hearing conservation program beginning in 1983 and
was tested annually and required to wear earplugs. Also submitted was a job history summary
from 1977 to 1987.
Appellant submitted an employment history with a job description for a laborer. In an
accompanying statement, he noted working from May 1977 to the present as a laborer and
molder where he spent 8 to 16 hours a day up to 7 days a week working on boilers. Appellant
was exposed to noise from large fans and condensation pumps. He reported no exposure to
hazardous noise outside of his employment.
On July 14, 2008 an Office claims examiner held a conference call with appellant to
verify his childhood illnesses, current medications and to confirm his work status. Appellant
reported having no childhood illnesses and noted that he was taking hypertension medication and
was still working for the employer. A July 15, 2008 statement of accepted facts set forth
appellant’s noise exposure history prior to and during his employment with the employing
establishment.
By letter dated July 15, 2008, the Office referred appellant and the statement of accepted
facts to Dr. Mark P. Clemons, a Board-certified otolaryngologist, for an otologic examination
and an audiological evaluation. Dr. Clemons performed an otologic evaluation of appellant on
September 10, 2008 and audiometric testing was conducted on his behalf on the same date.
Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the
following: right ear 10, 20, 25 and 40 decibels; left ear 10, 20, 25 and 35 decibels. Dr. Clemons
determined that appellant sustained sensorineural hearing loss which was at least in part due to
the noise exposure encountered in appellant’s employment. He recommended a trial of hearing
aids but noted that they might not benefit appellant.
On October 20, 2008 an Office medical adviser reviewed Dr. Clemons’ report and the
audiometric test of September 10, 2008. He concluded that, in accordance with the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,1
(A.M.A., Guides), appellant had zero percent monaural hearing loss in each ear. The medical
adviser determined that appellant’s hearing loss was not severe enough to be ratable for a
schedule award after applying the Office’s current standards for evaluating hearing loss to the
results of the September 10, 2008 audiogram. He did not recommend hearing aids be authorized.
On October 22, 2008 the Office accepted appellant’s claim for hearing loss. It noted that
although appellant’s hearing loss was employment related it was not severe enough to be

1

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

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considered ratable for purposes of a schedule award. The Office noted that the medical evidence
revealed that appellant would not benefit from hearing aids.
On November 17, 2008 appellant requested reconsideration.
He submitted a
November 7, 2008 statement and disagreed with the Office’s decision and advised that he would
be submitting additional evidence from his physician which establishes his claim. Appellant
submitted a duplicate copy of the medical adviser’s report of October 20, 2008 and the
October 22, 2008 Office decision.
In a December 16, 2008 decision, the Office denied appellant’s reconsideration request
finding that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.6 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.7 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

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

5

A.M.A., Guides 250 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

3

six to arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
ANALYSIS -- ISSUE 1
The Office properly referred appellant to Dr. Clemons regarding his hearing loss. An
Office medical adviser reviewed Dr. Clemons findings and concluded that appellant’s hearing
loss was aggravated by his employment. The medical adviser applied the Office’s standardized
procedures to the September 10, 2008 audiogram performed for Dr. Clemons. Testing for the
right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed
decibels losses of 10, 20, 25, and 40, respectively. These decibels were totaled at 95 and were
divided by 4 to obtain an average hearing loss at those cycles of 23.75 decibels. The average of
23.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to equal zero percent hearing loss for the right ear. Testing for the left ear at
the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibels losses of
10, 20, 25 and 35 respectively. These decibels were totaled at 90 and were divided by 4 to obtain
the average hearing loss at those cycles of 23.75 decibels. The average of 23.75 decibels was
then reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to zero
which was multiplied by the established factor of 1.5 to compute a zero percent hearing loss for
the left ear.
The Board finds that the Office medical adviser applied the proper standards to
Dr. Clemons’ September 10, 2008 report and the September 10, 2008 audiogram. The result is a
zero percent monaural hearing loss and a zero percent binaural hearing loss as set forth above.
The Board also notes that, while Dr. Clemons recommended a trial of hearing aids, his opinion is
equivocal on this aspect of the claim as he also questioned whether they would be of any benefit
to appellant.11 The Office medical adviser determined that hearing aids should not be authorized.
Consequently, the Board finds that the Office also properly denied authorization for hearing aids.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,12 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,13 which provide that a

9

Id.

10

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
11

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (the Board has held that medical
opinions which are speculative or equivocal in character have little probative value).
12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606(b).

4

claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.14
ANALYSIS -- ISSUE 2
Appellant’s November 17, 2008 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office.
Appellant submitted a narrative statement dated November 7, 2008 and asserted that he
disagreed with the Office’s decision denying his claim for a schedule award for hearing loss and
advised that he would be submitting additional evidence from his physician which established
his claim. These assertions do not demonstrate that the Office erroneously applied or interpreted
a specific point of law nor do they advance a relevant legal argument not previously considered
by the Office. Appellant did not set forth a particular point of law or fact that the Office had not
considered or establish that the Office had erroneously interpreted a point of law. Although he
indicated additional medical evidence would be forthcoming no additional evidence was
received. Consequently, appellant is not entitled to a review of the merits of his claim based on
the first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, appellant did not submit any relevant new evidence
with his reconsideration request. He submitted a copy of the medical adviser’s report of
October 20, 2008 and the October 22, 2008 Office decision. This evidence is duplicative of
evidence contained in the record and was previously considered by the Office.15 Although
appellant indicated that new evidence was forthcoming, no additional evidence was received
prior to the December 16, 2008 decision. The Office’s October 22, 2008 decision denied a
schedule award because there was no medical evidence supporting a ratable impairment. Thus,
the underlying issue is medical in nature. As such it is appellant’s obligation to submit new
14

Id. at § 10.608(b).

15

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

5

medical evidence to support that an employment-related condition caused permanent impairment
of a scheduled member of the body. But, as noted above, appellant did not submit any new and
relevant medical evidence with his reconsideration request. Therefore, the Office properly
denied this reconsideration request.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied his request for reconsideration.
CONCLUSION
The Board finds the Office properly denied appellant’s claim for a schedule award for
hearing loss and properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 16 and October 22, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Grand Ledge, MI,
Employer
__________________________________________

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

Docket No. 10-696
Issued: October 18, 2010

Case Submitted on the Record

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

JURISDICTION
On January 11, 2010 appellant filed a timely appeal from an October 20, 2009 merit
decision of the Office of Workers’ Compensation Programs. Under 20 C.F.R §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On February 19, 2009 appellant, a 58-year-old retired aircraft mechanic, filed an
occupational disease claim (Form CA-2) alleging that he sustained a hearing loss caused by
working around aircraft from 1970 to 2009. He submitted audiograms from 1986, 2000 and
2007.

In a statement of accepted facts dated March 10, 2009, the Office found that appellant
was employed as an aircraft mechanic since 1981 until retiring on February 27, 2009. Appellant
worked approximately 50 percent of the time in noisy areas in his position as an aircraft
mechanic, which required him to work inside the hangar on helicopters and outside the hangar on
running aircraft which were primarily helicopters. He was also exposed to machinery noise from
compressors, hydraulic pumps and aviation ground power units.
The Office referred appellant to Dr. Leonard Dias, a Board-certified otolaryngologist, for
a second opinion evaluation of his hearing loss. In a March 30, 2009 report, Dr. Dias discussed
the results of a March 23, 2009 audiogram, which revealed bilateral moderate sensorineural
hearing loss. It recorded hearing levels of 5, 10, 15 and 30 decibels on the right and 0, 10, 15
and 40 decibels on the left at 500, 1000, 2000 and 3000 hertz (Hz) respectively. Dr. Dias opined
that the results of the audiogram suggested a noise-induced hearing loss.
In a June 19, 2009 report, an Office medical adviser reviewed the results of the March 23,
2009 audiogram, and found that appellant’s bilateral hearing loss was not ratable for schedule
award purposes.
By decision dated June 26, 2009, the Office accepted appellant’s claim for bilateral
sensorineural hearing loss but found that appellant was not entitled to a schedule award for his
hearing loss. The Office noted that the results of audiometric testing under the applicable
standards of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) revealed a nonratable hearing loss.
On July 14, 2009 appellant requested a review of the written record. He submitted
audiograms dated 1986 to 2001 which showed varying degrees of bilateral hearing loss. The
employing establishment provided results of audiograms from 2007 and 2008 which indicated
that appellant had bilateral hearing loss.
By decision dated October 20, 2009, an Office hearing representative affirmed the
June 26, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

3

Id.

2

The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.5 Then, the fence of 25 decibels is
deducted. The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of
monaural hearing loss.6 The binaural loss is determined by calculating the loss in each ear using
the formula for monaural loss; the lesser loss is multiplied by five, then added to the greater loss,
and the total is divided by six to arrive at the amount of the binaural hearing loss.7 The Board
has concurred in the Office’s adoption of this standard for evaluating hearing loss.8
ANALYSIS
The Board finds that the evidence of record does not establish that appellant sustained a
ratable hearing loss.
The Office medical adviser properly applied the Office’s standardized procedures to the
May 23, 2009 audiogram obtained by Dr. Dias. The May 23, 2009 audiogram certified by
Dr. Dias does not establish a ratable hearing loss. According to the Office’s standardized
procedures, testing at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed hearing losses
in the right ear of 5, 10, 15 and 30. These totaled 60 decibels which, when divided by 4,
produced an average hearing loss of 15 decibels. The average of 15 decibels when reduced by
25 decibels (the first 25 decibels are discounted as discussed above), equals 0 and which, when
multiplied by the established factor of 1.5 produced a 0 percent hearing loss in appellant’s right
ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed
hearing losses in the left ear of 0, 10, 15 and 40. These totaled 65 decibels which when divided
by 4, produced an average hearing loss of 16.25 decibels. The average hearing loss of 16.25
decibels, when reduced by 25 decibels (the first 25 decibels are discounted as discussed above),
equals 0 which, when multiplied by the established factor of 1.5 produced a 0 percent hearing
loss in appellant’s left ear.
On appeal, appellant contends that he is entitled to a schedule award because he sustained
a measurable hearing loss. The Office accepted that appellant sustained bilateral hearing loss
due to noise exposure from his federal employment. The issue is whether he sustained any
ratable impairment in accordance with the A.M.A., Guides. The Office medical adviser properly
computed the percentage of appellant’s hearing loss based on the formula contained in the
4

Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 2.0700.4.b
(January 2010).
5

Id.

6

Id.

7

Id.

8

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

3

A.M.A., Guides. There is no provision for granting a schedule award in the absence of a ratable
hearing loss after deducting the 25 decibel fence.
The Board finds that the Office properly applied the audiometric test of March 23, 2009
for determining appellant’s impairment and eligibility for a schedule award. It was the only test
of record performed within the past two years that was certified by a physician.9 It is appellant’s
burden to submit a properly certified audiogram for review if he objects to the audiogram
selected by the Office for determining the degree of hearing loss.10 Although appellant
submitted results from audiometric testing performed from 1986 to 2001, these audiograms are
insufficient to satisfy appellant’s burden of proof as they did not comply with the requirements
set forth by the Office. These tests lack speech testing and bone conduction scores and were not
prepared or certified as accurate by a physician as defined by the Act. The Office is not required
to rely on this evidence in determining the extent of appellant’s hearing loss because it does not
constitute competent medical evidence and therefore is insufficient to satisfy appellant’s burden
of proof.
As appellant’s hearing loss is not ratable, he is not entitled to the additional award for
tinnitus. His claim for hearing loss was accepted and he is entitled to medical benefits related to
this loss. Appellant’s hearing loss is not ratable under the Act and the Office denied a schedule
award on this basis.
CONCLUSION
The Board finds that appellant has not established a ratable hearing loss entitling him to a
schedule award.

9

See H.S., 58 ECAB 690 (2007); John C. Messick, 25 ECAB 333 (1974).

10

See Joshua A. Holmes, 42 ECAB 231 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the October 20 and June 26, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 18, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearny, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2249
Issued: August 19, 2011

Case Submitted on the Record

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

JURISDICTION
On September 8, 2010 appellant, through her attorney filed a timely appeal of a July 12,
2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision granting a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than two percent impairment of the right upper
extremity and seven percent impairment of the left upper extremity for which she received
schedule awards.
Counsel argued on appeal that, based on the date of maximum medical improvement and
submission of the claim to OWCP, appellant’s schedule award should have been calculated

1

5 U.S.C. § 8101 et seq.

under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment.2
FACTUAL HISTORY
On February 11, 2003 appellant, then a 58-year-old distribution clerk, filed a traumatic
injury claim alleging that she sustained injury to both arms that day when a bulk mail carrier
struck her and knocked her to the ground. A magnetic resonance imaging (MRI) scan of
February 24, 2003 found mild rotator cuff tendinopathy with no complete tear, but failed to
demonstrate a condition of the left upper arm. Dr. Aekyeong H. Moon, a Board-certified
internist, diagnosed rotator cuff syndrome as well as contusions beginning on February 25, 2003.
On July 10, 2003 OWCP accepted appellant’s claim for contusions of the arms, left knee and left
shoulder.
In a report dated February 7, 2009, Dr. David Weiss, an osteopath, reviewed appellant’s
medical history, noting a diagnosis of bilateral de Quervain’s tenosynovitis in 1997 and an injury
in 2003. He reported appellant’s complaints of left shoulder pain and stiffness, bilateral wrist
pain and stiffness as well as numbness and tingling of the hands. Appellant stated that she
experienced weakness in her upper extremities and difficulties in daily living with household
duties performed with the assistance of friends and family members. Dr. Weiss diagnosed
cumulative and repetitive trauma disorder, bilateral de Quervain’s tenosynovitis to the right and
left wrist, defined work-related injury to the left shoulder, chronic post-traumatic rotator cuff
tendinopathy to the left shoulder and post-traumatic acromioclavicular arthropathy with
impingement to the left shoulder. Based on his examination, Dr. Weiss computed a QuickDASH
score of 45 for the left upper extremity and 63 for the right upper extremity.
As to the left shoulder, Dr. Weiss found focal acromioclavicular point tenderness,
anterior cuff tenderness and forward elevation of 165 degrees, abduction of 160 degrees,
adduction of 65 degrees, internal rotation of 90 degrees and external rotation of 90 degrees. He
found left wrist range of motion of 44 degrees of palmar flexion, radial deviation of 20 degrees
and ulnar deviation of 35 degrees. Dr. Weiss reported 75 degrees of dorsiflexion, 40 degrees of
palmar flexion and 20 degrees of radial deviation and ulnar deviation of 35 degrees. He reported
grip strength measurements of 22 kilograms of force in the right hand and 18 kilograms of force
in the left hand.
Dr. Weiss applied the fifth edition of the A.M.A., Guides to his findings and determined
that appellant had 2 percent loss of range of motion of the left shoulder, 2 percent left wrist
palmar flexion and left thumb abduction of 18 percent for 22 percent impairment of the left
upper extremity. He also added an additional 3 percent impairment due to pain for a total left
upper extremity rating of 25 percent. Dr. Weiss found 23 percent impairment of the right upper
extremity due to loss of flexion, right thumb abduction and pain-related impairment.

2

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

2

Counsel requested a schedule award on appellant’s behalf on March 17, 2009. In a letter
dated July 23, 2009, OWCP informed her that her request for a schedule award should be
evaluated under the sixth edition of the A.M.A., Guides3 which came into effect on May 1, 2009.
On October 15, 2009 Dr. Weiss revised his report to comport with the sixth edition of the
A.M.A., Guides. He diagnosed left shoulder rotator cuff tendinitis with residual loss awarding
five percent impairment.4 Dr. Weiss found that appellant had physical examination adjustment
of two, functional history adjustment of two based on the QuickDASH and clinical studies
adjustment of one based on imaging. He also diagnosed de Quervain’s tenosynovitis and found
two percent impairment with similar physical examination and functional history and a zero
adjustment for clinical studies. Dr. Weiss found that appellant’s left upper extremity impairment
was seven percent. In regard to appellant’s right upper extremity, he made an identical rating for
de Quervain’s tenosynovitis.
OWCP’s medical adviser reviewed the evidence on May 24, 2010. He found that
Dr. Weiss’ report comported with the A.M.A., Guides based on diagnosis of left shoulder rotator
cuff tendinitis, left de Quervain’s tenosynovitis and right de Quervain’s tenosynovitis.
By decision dated July 12, 2010, OWCP granted appellant schedule awards for two
percent impairment of the right upper extremity and seven percent impairment of the left upper
extremity.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.5
Section 8107 provides that, if there is permanent disability involving the loss of loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.6 A schedule award can be paid only for a
condition related to an employment injury. The claimant has the burden of proving that the
condition for which a schedule award is sought is causally related to her employment.7 In other
words, it is the claimant’s burden of proof to establish that she sustained a permanent impairment
of a scheduled member or function as a result of an employment injury.8

3

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
4

A.M.A., Guides 402, Table 15-5.

5

Tammy L. Meehan, 53 ECAB 229, 230 (2001).

6

5 U.S.C. § 8107.

7

Veronica Williams, 56 ECAB 367 (2005).

8

Meehan, supra note 5.

3

The schedule award provision of FECA and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.
ANALYSIS
OWCP accepted appellant’s claim for contusions of the arms, left knee and left shoulder.
Appellant’s attending physician, Dr. Moon, listed rotator cuff syndrome as a preexisting
condition based on an MRI scan that showed rotator cuff tendinopathy. Dr. Weiss listed bilateral
de Quervain’s tenosynovitis since 1997, which preexisted her February 11, 2003 employment
injury. It raises the question as to whether this condition should be considered in evaluating
whether she has any permanent impairment as a result of the accepted conditions of contusions
of the upper extremity.10 OWCP’s medical adviser did not address the medical evidence as to
any preexisting de Quervain’s tenosynovitis or rotator cuff conditions. The claim will be
remanded for a supplemental report from the medical adviser that addresses permanent
impairment of her upper extremities due to preexisting conditions which should be included in
determining her rating for schedule award purposes.
On appeal, counsel argues that appellant reached maximum medical improvement on
February 7, 2009 and that the case was submitted to OWCP on March 17, 2009 and therefore the
fifth edition of the A.M.A., Guides should have been used to rate appellant’s permanent
impairment. In Harry D. Butler,11 the Board noted that Congress delegated authority to the
director regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.12 On March 15, 2009 the director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.13 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
9

20 C.F.R. § 10.404.

10

When assessing the percentage of impairment of those conditions accepted by OWCP as job related, any
preexisting permanent impairment of the same member is included. J.H., 59 ECAB 377, 380 (2008).
11

43 ECAB 859 (1992).

12

Id. at 866.

13

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

4

CONCLUSION
The Board finds that the case is not in posture for decision on the extent of permanent
impairment to appellant’s upper extremities.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development.
Issued: August 19, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dulles, VA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 06-1319
Issued: May 21, 2007

Oral Argument April 5, 2007

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

JURISDICTION
On May 24, 2006 appellant filed a timely appeal of an October 11, 2005 decision of the
Office of Workers’ Compensation Programs denying her claim for an augmented schedule award
and a May 2, 2006 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501(d)(3), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that she sustained greater than a
10 percent impairment of each upper extremity, for which she received a schedule award; and
(2) whether the Office properly refused to reopen appellant’s case for further reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 7, 1998 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim alleging that on September 26, 1997 she first realized her bilateral carpal tunnel

syndrome was employment related. The Office accepted the claim for bilateral carpal tunnel
syndrome and authorized right wrist exploration with excision biopsy of mass and neurolysis,
which was performed on August 17, 1999 and right ring finger trigger release, which was
performed on July 31, 2003.1
On January 20, 1999 appellant filed a claim for a schedule award.
On September 18, 2000 Dr. Rida N. Azer, a treating Board-certified orthopedic surgeon,
stated that appellant had a 35 percent permanent impairment of the right upper extremity and a
35 percent permanent impairment of the left upper extremity. She listed September 28, 2000 as
the date of maximum medical improvement.
On January 14, 2001 the Office medical adviser concluded that appellant had a
10 percent permanent impairment of the right upper extremity and a 10 percent permanent
impairment of the left upper extremity.
By decision dated February 14, 2002, the Office issued a schedule award for a 10 percent
impairment of the right upper extremity and a 10 percent impairment of the left upper extremity.
On June 6, 2002 Dr. Daniel R. Ignacio, a treating Board-certified physiatrist, diagnosed
chronic bilateral carpal tunnel syndrome, chronic bilateral median neuritis, chronic wrist
tenosynovitis and right upper limb reflex sympathetic dysfunction. He opined that appellant had
a 30 percent impairment of the right wrist due to loss of motor function and a 35 percent
impairment of the right wrist due to loss of sensation for a total impairment of 65 percent.
Dr. Ignacio concluded that appellant had an additional 10 percent impairment of the right upper
extremity due to reflex sympathetic disorder resulting in a total right upper extremity impairment
of 75 percent. With respect to the left upper extremity, he concluded that appellant had 25
percent impairment due to loss of motor function and 20 percent impairment due to sensory
dysfunction resulting in a total impairment of 45 percent for the left upper extremity. Lastly,
Dr. Ignacio stated that these impairment ratings were based upon the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed.).
By decision dated August 19, 2002, the Office denied appellant’s request for
modification of the June 21, 2002 schedule award decision.
In a letter dated September 25, 2002, appellant requested reconsideration.
On September 19, 2003 an evaluation of permanent impairment was performed by
Dr. Hampton J. Jackson, a Board-certified orthopedic surgeon, Dr. Talaat F. Maximous, a
physician, and Dr. Azer. Using Tables 16-32 and 16-34, they determined that appellant had a 30
percent impairment of her right upper extremity based upon grip strength of 8 kilograms (kg).
They used Tables 16-33 and 16-34 to find that appellant had a 20 percent upper extremity
impairment based upon grip strength of 2 kg. Using the Combined Values Chart, the physicians
determined that appellant had a total right upper extremity impairment of 50 percent. As to the
1

On October 27, 2003 appellant filed a claim for a recurrence of disability beginning September 5, 2003, which
was accepted on February 2, 2004.

2

left upper extremity, using Tables 16-32, 16-33 and 16-34 they found that appellant had a
20 percent impairment due to “a pinch strength loss index of 56 percent on the left” and “has a
pinch loss of 20 percent.” Combing these two values, they determined appellant had a 36
percent permanent impairment of the left upper extremity.
On November 3, 2003 appellant filed a claim for a schedule award.
On July 22, 2004 Dr. Ignacio concluded that appellant had a 70 percent permanent
impairment of her right upper extremity and a 40 percent impairment of the left upper extremity.
In reaching this determination, he found 20 percent impairment due to right median nerve injury
dysfunction, 30 percent impairment due to motor deficits and weakness and 20 percent
impairment in her right shoulder due to limited movement and strength. As to the left upper
extremity, Dr. Ignacio concluded that appellant had 25 percent impairment due to motor
dysfunction and weakness and 15 percent impairment due to median nerve injury sensory
dysfunction. Lastly, he noted that he used Tables 13-22, 16-10, 16-11, 16-14, 16-14, 16-15, 1632, 16-34 and 16-35 in determining appellant’s permanent impairment.2
On October 29, 2004 Dr. Willie E. Thompson, an Office medical adviser, reviewed the
medical record and noted that there was “no documentation of any evidence that there is an
increase in this individual’s impairment.” He opined that Dr. Ignacio’s report was “equivocal at
best” and could not “be considered an accurate reflection” of appellant’s condition.
Dr. Thompson recommended referral to a second opinion physician to conduct updated
electromyography (EMG) and nerve conduction studies to assess appellant’s current condition.
In a December 9, 2004 report, Dr. Ignacio, based upon an EMG study, diagnosed
abnormal EMG findings, normal ulnar and radial nerve conduction studies, “prolonged distal
sensory latency of bilateral medial sensory nerves” and a normal medial motor nerve proximal
conduction velocity.
On March 30, 2005 Dr. Taghi Kimyai-Asadi, a second opinion Board-certified
neurologist, based upon a review of the medical evidence, statement of accepted facts and
physical examination, diagnosed “evidence of right old carpal tunnel syndrome with residual
atrophy” clinically. He opined that the “sensory loss is not typical of carpal tunnel syndrome”
and appellant denied “any recent worsening of her condition.” Dr. Kimyai-Asadi conducted
EMG and nerve conduction studies on April 4, 2005. He found no evidence of carpal tunnel
syndrome bilaterally based on the nerve conduction study. In an April 4, 2005 addendum,
Dr. Kimyai-Asadi found no residuals of appellant bilateral carpal tunnel based upon the objective
evidence. With respect to appellant’s hand numbness, he concluded that it might be related to
her nonwork-related cervical radiculopathy. Dr. Kimyai-Asadi opined that the objective
evidence did not “warrant an increase in the percentage of permanent partial impairment of the
right or left upper extremities.”
On May 4, 2005 Dr. Thompson an Office medical adviser, found the evidence
insufficient to warrant an increase in appellant’s schedule award. He noted that the April 4, 2005
EMG and nerve conduction studies showed no evidence of carpal tunnel syndrome bilaterally.
2

A.M.A., Guides 343, 482, 484, 490, 492, 509, 509 and 510 respectively.

3

By decision dated October 11, 2005, the Office denied appellant’s request for
modification of her schedule award.
Subsequently, the Office received additional medical evidence including reports
regarding appellant’s treatment from Drs. Azer and Ignacio and physical therapy reports.
Appellant requested reconsideration on April 13, 2006 and submitted October 19, 2004
magnetic resonance imaging (MRI) scans of both wrists by Dr. Krista L. McFarren in support of
her request The Office subsequently received additional evidence including an April 20, 2005
physical therapy report.
On May 2, 2006 the Office denied appellant’s request for reconsideration.3
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.6 Effective
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
Office procedures8 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.9
ANALYSIS -- ISSUE 1
Appellant previously received schedule awards for a 10 percent impairment to each upper
extremity. She subsequently filed a claim for an increased schedule award. The Office denied
3

The Board notes that, following the May 2, 2006 nonmerit decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R. Gervasi,
57 ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

See Jesse Mendoza, 54 ECAB 802 ( 2003).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, exhibit 4
(June 2003). See also Cristeen Falls, 55 ECAB 420 (2004).
9

A.M.A., Guides 491, 482, 484, 492, respectively; Joseph Lawrence, Jr., 53 ECAB 331 (2002).

4

an additional schedule award on the basis that the medical evidence did not support an increase
in impairment in both arms. To establish entitlement to an additional award, the medical
evidence must show that impairment due to the accepted employment injuries has increased.
In support of her request, appellant submitted a September 19, 2003 report by Drs. Azer,
Jackson and Maximous. The physicians rated appellant according to grip strength, sensory
deficit of the median nerve and pain. The Board notes, however, that the A.M.A., Guides
provide that in compression neuropathies, additional impairment values are not to be given for
decreased grip strength.10 As these physicians misapplied the A.M.A., Guides, the Board finds
that the impairment rating by Drs. Azer, Jackson and Maximous is of diminished probative
value.
Appellant also submitted reports dated June 6, 2002 and July 22, 2004 by Dr. Ignacio. In
a June 6, 2002 report, Dr. Ignacio concluded that appellant had a total right upper extremity
impairment of 75 percent and a total impairment of 45 percent for the left upper extremity.
However, he did not provide an impairment rating based on the A.M.A., Guides. Dr. Ignacio
failed to identify the pages, tables and grading schemes of the A.M.A., Guides used in making
appellant’s impairment rating. Therefore, the Board finds that his June 6, 2002 report is of
diminished probative value and insufficient to establish appellant’s entitlement to an additional
schedule award for her upper extremities.
The record also contains a July 22, 2004 report by Dr. Ignacio. In this report he opined
that appellant had a 70 percent permanent impairment of her right upper extremity and a 40
percent impairment of the left upper extremity. In reaching this determination, Dr. Ignacio found
20 percent impairment due to right median nerve injury dysfunction, 30 percent impairment due
to motor deficits and weakness and 20 percent impairment in her right shoulder due to limited
movement and strength. As to the left upper extremity, he concluded that appellant had
25 percent impairment due to motor dysfunction and weakness and 15 percent impairment due to
median nerve injury sensory dysfunction. While noting the tables used in calculating appellant’s
permanent impairment, Dr. Ignacio failed to identify how he applied the tables beyond
referencing them. As he failed to provide any rationale explaining how he used the tables and
grading schemes, the Board finds that his July 22, 2004 report is of diminished probative value
and insufficient to establish appellant’s entitlement to an additional schedule award for her upper
extremities.
The Office referred appellant to Dr. Kimyai-Asadi for a second opinion medical
evaluation. He submitted a March 30, 2005 report, in which he provided an accurate factual
medical background. Dr. Kimyai-Asadi recommended diagnostic testing to determine
appellant’s permanent impairment. In an April 4, 2005 report, he found no evidence of carpal
tunnel syndrome bilaterally based on the nerve conduction study. In an April 4, 2005 addendum
to his March 30, 2005 report, Dr. Kimyai-Asadi found no residuals of appellant’s bilateral carpal
tunnel based upon the objective evidence. He opined that the objective evidence did not
“warrant an increase in the percentage of permanent partial impairment of the right or left upper
extremities.”
10

Id. at 494.

5

On May 4, 2005 Dr. Thompson, an Office medical adviser, reviewed the evidence of
record and found that there was no evidence to warrant an increase in appellant’s schedule
award. He noted that the April 4, 2005 EMG and nerve conduction studies showed no evidence
of carpal tunnel syndrome bilaterally.
The Board finds that the weight of the medical opinion evidence is represented by the
reports of Dr. Kimyai-Asadi, a second opinion physician, and Dr. Thompson, the Office medical
adviser, who concluded that there was no evidence warranting an additional schedule award. In
support of this conclusion, both physicians noted that the April 4, 2005 EMG and nerve
conduction studies showed no evidence of bilateral carpal tunnel syndrome.
The Board finds that appellant submitted no rationalized medical evidence which
establishes entitlement to an additional schedule award for her upper extremities causally related
to her accepted bilateral carpal tunnel syndrome.
LEGAL PRECEDENT -- ISSUE 2
The Act11 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
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
11

5 U.S.C. § 8101 et seq.

12

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

13

20 C.F.R. § 10.605.

14

Id. at § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

15

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

16

Id. at §10.608(b). See Candace A. Karkoff, 56 ECAB ___ (Docket No. 05-677, issued July 13, 2005).

6

ANALYSIS -- ISSUE 2
On April 13, 2006 appellant requested reconsideration. She has not shown that the Office
erroneously applied or interpreted a specific point of law; she has not advanced a relevant legal
argument not previously considered by the Office; and she has not constituted relevant and
pertinent evidence not previously considered by the Office. The evidence that appellant
submitted is not pertinent to the issue on appeal. She submitted MRI scan reports, physical
therapy reports and reports by Drs. Azer and Ignacio updating her medical condition. None of
the reports provided an updated impairment rating. The Board has held that the submission of
evidence which does not address the particular issue involved in the case does not constitute a
basis for reopening the claim.17 The reports by Drs. Azer and Ignacio did not present any
additional evidence pertaining to the relevant issue of whether appellant sustained an additional
permanent impairment causally related to her accepted bilateral carpal tunnel syndrome.
Appellant’s reconsideration request failed to show that the Office erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
the Office. The Office properly refused to reopen appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
an additional schedule award for her upper extremities. The Board further finds that the Office
properly denied merit review of the October 11, 2005 decision.

17

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

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 2, 2006 and October 11, 2005 are affirmed.
Issued: May 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 10-137
Issued: August 6, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant filed a timely appeal from the August 11 and
September 24, 2009 merit decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUE
The issue is whether the Office met its burden of proof to suspend appellant’s
compensation benefits, pursuant to 5 U.S.C. § 8123(d), on the grounds that she refused to submit
to a medical examination.
FACTUAL HISTORY
On January 21, 2003 appellant, then a 53-year-old postal clerk, sustained a lumbar strain
while unloading mailbags in the performance of duty. On February 27, 2003 the Office accepted
her claim for lumbar sprain/strain and sciatica. It entered appellant on the periodic rolls on
August 28, 2003.

In a letter dated October 27, 2003, the Office noted that appellant had failed to keep a
scheduled appointment with a medical specialist and advised her of the penalty provisions of the
Act. It allowed appellant 15 days to offer an explanation and agree to attend the rescheduled
appointment. In a decision dated November 12, 2003, the Office suspended appellant’s
compensation under section 8123(d) of the Act effective November 12, 2003. It noted that her
benefits could be reinstated after verification that she attended and cooperated with the
examination. Appellant requested reconsideration and submitted evidence that she had
attempted to reschedule the appointment. On December 5, 2003 the Office found that appellant
made a reasonable effort to reschedule the appointment. It further stated that there was sufficient
error on the part of the scheduling contractor to support vacating the November 12, 2003
decision and reinstating her wage-loss compensation.
Appellant’s attending physician, Dr. Stephen E. Popper, an osteopath, completed a note
on August 24, 2005. He stated that he had reached the end of treatment modalities for appellant
and that she needed vocational rehabilitation. Dr. Popper referred her for a functional capacity
evaluation (FCE) and expected that she could perform sedentary work. In a report dated
September 27, 2005, Brooke Sauer, the therapist, stated that appellant was unable to complete
the FCE due to pain complaints and her refusal to continue with testing. On October 14, 2005
Dr. Popper stated that appellant had completed an FCE which showed a sedentary work profile.
On January 11, 2006 he again advised that she could perform sedentary work, but that she might
be limited in the amount of time that she could work per day. Dr. Popper suggested that
appellant build up her endurance over time. He found that she was at maximum medical
improvement on August 14, 2006. On December 20, 2006, January 19 and March 29, 2007
Dr. Popper stated that appellant could return to work but recommended an evaluation by a
psychologist. In a report dated May 25, 2007, he stated that she had left leg numbness and
decreased in strength due to her employment-injury. Dr. Popper noted that he had requested
authorization for a psychological evaluation and found that appellant was not capable of working
at the current time.
In a letter dated November 2, 2007, appellant stated that she was resigning from the
employing establishment and no longer needed to receive compensation. She stated, “I have
other health problems and too much stress in my life at this time. Effective November 1, 2007.”
However, on November 20, 2007 appellant elected to receive FECA benefits effective that date.
On April 4, 2008 the Office referred appellant for a second opinion evaluation scheduled
for May 8, 2008. It advised her of her responsibility to attend the appointment and that, if she
failed to do so without an acceptable reason, her compensation benefits could be suspended in
accordance with section 5 U.S.C. § 8123(d). Appellant telephoned the Office on April 29, 2008
and stated that she needed the second opinion evaluation rescheduled. The Office agreed to
reschedule the second opinion examination for a date after May 19, 2008 and informed her that
she must attend the rescheduled examination. Appellant telephoned the Office on May 20, 2008
and stated that she did not attend the second opinion evaluation scheduled for that date. She
stated that she contacted the physician and the scheduling service.
In a letter dated May 20, 2008, the Office notified appellant of the proposed suspension
of her compensation benefits as she failed to report for the scheduled examination on
May 20, 2008. It instructed her to provide reasons for failing to submit to the examination

2

within 14 days and informed her that, if she did not show good cause for her failure, her
entitlement to compensation would be suspended under 5 U.S.C. § 8123(d) until after she
attended and fully cooperated with the examination.
On May 23, 2008 the Office informed appellant that a second opinion evaluation was
scheduled for June 10, 2008 with Dr. Luis A. Loimil, a Board-certified orthopedic surgeon.
In a statement dated May 28, 2008, appellant informed the Office that she had a
precancerous growth removed from her back on May 19, 2008 and on May 20, 2008, was
bleeding and experiencing a low grade temperature. She contended that she was physically
unable to attend the May 20, 2008 appointment.
Appellant attended the June 10, 2008 appointment with Dr. Loimil and he recommended
an FCE as appellant exhibited symptom magnification during his examination.
In a letter dated July 7, 2009, the Office’s scheduling service instructed appellant to
report to the Holzer Clinic in Gallipolis, Ohio for an FCE on July 22, 2009 at 1:00 pm. The
service instructed appellant to wear comfortable clothing and tennis shoes for the examination.
On July 21, 2009 the Office received a telephone call from the scheduling service that she would
not attend the FCE because she was ill. It contacted appellant and left a message that she needed
to attend the scheduled appointment or provide medical documentation to support her illness.
The Office verbally informed her of the consequences of refusing to cooperate with a medical
examination. Appellant rescheduled the FCE for July 30, 2009.
In a letter dated July 22, 2009, the Office notified appellant that it proposed to suspend
her compensation because she failed to report for examination on July 22, 2009. It allowed her
14 days to provide a valid reason in writing for failing to submit to the examination and informed
her that if she did not provide good cause her entitlement to compensation would be suspended.
Appellant telephoned the Office on July 22, 2009 and stated that she could not attend the FCE
due to chronic pain.
By letter dated July 22, 2009, the Office’s scheduling service rescheduled the FCE for
July 30, 2009 at 9:00 a.m. at the Holzer Clinic in Gallipolis, Ohio.
On July 27, 2009 appellant submitted a note dated March 3, 2009 from Dr. Earl L.
Driggs, a podiatrist, indicating that he examined appellant on February 25, 2009 and that she
underwent left foot surgery on November 17, 2008 and continued to experience chronic foot pain
which rendered her totally disabled. She telephoned the Office on July 29, 2009 and stated that
she would not attend the July 30, 2009 FCE as she was unable to wear tennis shoes and
experienced chronic pain. The Office instructed appellant to attend. On July 30, 2009
appellant’s husband telephoned the Office and stated that appellant had been hospitalized for
blood clots in her legs and respiratory infection.
By decision dated August 11, 2009, the Office finalized the proposed suspension of
appellant’s compensation under 5 U.S.C. § 8123(d) effective that date due to her failure to
submit to the scheduled FCE on July 22 and 30, 2009. It noted that appellant’s benefits may be
reinstated only after verification that she attended and fully cooperated with the examination and
the reinstatement would be effective the date of compliance.
3

On August 18, 2009 appellant stated that she was unable to attend the evaluation due to
chronic foot pain and that she was admitted to the hospital on July 29, 2009 with chest pain and
pleurisy. Dr. M.C. Shah, a physician, completed a note on August 5, 2009 and stated that he
admitted appellant to the hospital for observation on July 29, 1998 with a diagnosis of chest pain
and pleurisy. Appellant requested reconsideration contending that her doctors supported that she
could not be evaluated on July 22 and 30, 2009. In a report dated September 1, 2009, Dr. Driggs
stated that appellant continued to experience left foot pain following surgery for chronic
exostosis and nerve pain. Appellant had difficulty wearing shoes due to foot pain and sciatica.
Dr. Diggs opined that appellant would have difficulty with a standing job due to her difficulty
wearing shoes.
In a September 24, 2009 decision, the Office denied modification of the August 11, 2009
decision.1
LEGAL PRECEDENT
Section 8123(a) of the Act and section 10.320 of the Office’s regulations authorized the
Office to require an employee, who claims disability as a result of federal employment to
undergo a physical examination as it deems necessary.2 The determination of the need for an
examination, the type of examination, the choice of locale and the choice of medical examiners
are matters within the province and discretion of the Office.3 The Act further states in section
8123(d) that if the employee refused to or obstructs an examination his or her right to
compensation is suspended until the refusal or obstruction stops and that the period of refusal or
obstruction is deducted from the period for which compensation is payable.4 The Board has held
that a time must be set for a medical examination and the employee must fail to appear for the
appointment, without an acceptable excuse or reason, before the Office can suspend or deny the
employee’s entitlement to compensation on the grounds that the employee failed to submit to or
obstructed a medical examination.5 The Office’s procedure manual provides that, if the claimant
does not report for a scheduled appointment, he or she should be asked in writing to provide an
explanation within 14 days.6 If good cause is not established, entitlement to compensation

1

Although the Office’s cover letter for the September 24, 2009 decision indicated that it had not reviewed the
merits of appellant’s claim, the Board finds that the enclosed memorandum reviewed the evidence and declined to
modify the August 11, 2009 decision, rather than applying the nonmerit standard of review found in 20 C.F.R.
§§ 10.606; 10.608.
2

5 U.S.C. § 8123(a); 20 C.F.R. § 10.320.

3

S.B., 58 ECAB 267 (2007).

4

5 U.S.C. § 8123(d).

5

Margaret M. Gilmore, 47 ECAB 718 (1996).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).

4

should be suspended in accordance with 5 U.S.C. § 8123(d) until the claimant reports for
examination.7
ANALYSIS
The Board finds that the Office did not properly suspend appellant’s compensation
because it did not follow established procedures. The Office scheduled FCEs on July 22 and 30,
2009 which appellant did not attend. On July 22, 2009 it proposed to suspend her wage-loss
compensation for failure to attend the July 22, 2009 examination. As noted, the determination of
the need for an examination lies within the discretion of the Office.8 The Board has interpreted
section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues.9 In this case, however, the Office rescheduled the evaluation to
July 30, 2009. After appellant failed to appear for the July 30, 2009 examination, the Office
finalized the suspension of wage-loss compensation based on her failure to appear at the July 22
and 30, 2009 examinations.
While the Office provided appellant notice that she had 14 days to provide reasons for
failing to appear at the July 22, 2009 examination, it did not provide her with similar notice
following the missed evaluation of July 30, 2009. Rather, it finalized the suspension effective
August 11, 2009. Office procedures clearly state that, if a claimant does not report for a
scheduled appointment, he or she should be asked to provide a written explanation within 14
days.10 After missing the July 30, 2009 examination, appellant should have been provided
proper notice and given 14 days to submit written reasons for her failure to appear. As this was
not done, the Board finds that the Office erred in suspending her right to compensation benefits
based on notice pertaining to the July 22, 2009 examination.11
CONCLUSION
The Board finds that the Office did not properly suspend appellant’s right to
compensation benefits beginning August 11, 2009.

7

Id.; see Scott R. Walsh, 56 ECAB 353 (2005); Raymond C. Dickinson, 48 ECAB 646 (1997).

8

S.B., supra note 3.

9

5 U.S.C. § 8123(d).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
11

J.C., Docket No. 09-609 (issued January 5, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the September 24 and August 11, 2009 decisions of
the Office of Workers’ Compensation Programs are reversed.
Issued: August 6, 2010
Washington, DC

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

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

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

6