United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 14-1637
Issued: February 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 21, 2014 appellant filed a timely appeal from an April 22, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) rescinding modification of a loss of
wage-earning capacity determination, a June 5, 2014 decision finding that he received an
overpayment of compensation, and a June 13, 2014 decision terminating his compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly rescinded its decision modifying a June 27,
2013 loss of wage-earning capacity determination; (2) whether appellant received an
overpayment of compensation in the amount of $15,008.48 because OWCP erroneously paid him
compensation from July 13, 2013 to January 22, 2014; (3) whether OWCP properly denied
waiver of recovery of the overpayment; and (4) whether OWCP properly terminated appellant’s

1

5 U.S.C. § 8101 et seq.

compensation effective June 28, 2014 on the grounds that he had no further employment-related
disability.
FACTUAL HISTORY
On April 17, 2012 appellant, then a 52-year-old tractor operator, filed an occupational
disease claim alleging that he sustained a left shoulder condition due to both heavy lifting and the
inability to use his right shoulder as a consequence of a prior injury. OWCP accepted the claim
for neck sprain, a left shoulder, and upper arm sprain, displacement of a cervical intervertebral
disc without myelopathy, and brachial neuritis or radiculitis not otherwise specified. It paid
appellant compensation for lost wages beginning November 18, 2012.
Appellant’s position as a tractor operator required light to moderate duties, including
lifting and carrying up to 50 pounds without assistance and frequent stooping, bending, reaching,
moving the arms and legs, and driving.
On October 26, 2012 Dr. Lewis C. Jones, a Board-certified orthopedic surgeon,
performed an anterior acromioplasty on appellant’s left shoulder. In a work restriction
evaluation dated December 11, 2012, he found that appellant could work full time with
restrictions of no use of the left upper extremity.
On December 20, 2012 the employing establishment offered appellant a 90-day term
position as an administrative support clerk. It noted that the position was sedentary and had no
physical demands. The employing establishment provided the position description for the
administrative support clerk job. Appellant accepted the position and returned to work on
January 7, 2013.
On March 7, 2013 the employing establishment related that appellant earned the same
hourly rate as in his date-of-injury job. OWCP inquired whether the position was temporary or
permanent. In a March 11, 2013 response, the employing establishment advised that appellant’s
position was temporary and that his duties included sitting and answering a telephone. It noted
that his term appointment expired April 6, 2013 and that he was hired for an additional 90 days.
By letter dated June 17, 2013, the employing establishment related that appellant was on
a term appointment that had been extended until July 13, 2013. It was not continuing his
employment beyond that date due to its workload.
By decision dated June 26, 2013, OWCP reduced appellant’s compensation to zero
effective January 7, 2012 based on its determination that his actual earnings as an administrative
support clerk fairly and reasonably represented his wage-earning capacity. It noted that he was
working in a term appointment as a tractor operator at the time of his injury and that the medical
evidence supported that he could perform the modified position.
On September 16, 2013 appellant filed a notice of recurrence of disability beginning
July 11, 2013 causally related to his August 13, 2011 employment injury. On October 7, 2013
the employing establishment related that it did not withdraw his limited-duty position but that
instead his term position had expired.

2

On September 16, 2013 Dr. Jones noted that an April 2013 magnetic resonance imaging
scan study did not show a rotator cuff tear. He referred appellant to Dr. Val Irion, an orthopedic
surgeon, for an evaluation of appellant’s continued left shoulder pain.
In a report dated September 27, 2013, Dr. Irion related that appellant initially injured his
back in 2008 and then sustained an injury to his left shoulder. He diagnosed impingement pain
probably from a partial thickness rotator cuff tear, acromioclavicular (AC) joint arthritis, and
biceps tendinitis. Dr. Irion requested authorization from workers’ compensation for surgery.
In a statement dated November 8, 2013, appellant’s attorney related that the medical
evidence supported that his condition changed such that he required additional surgery. She
noted that, subsequent to his left shoulder surgery, he experienced increased left shoulder pain
and numbness from the cervical nerves.
In a progress report dated December 30, 2013, Dr. Irion indicated that an electromyogram
revealed damage to the C7-8 nerve roots. He diagnosed impingement due most likely to a partial
tear of the rotator cuff, AC degenerative joint disease, and biceps tendinitis. Dr. Irion stated,
“[Appellant] never really improved from the surgery with Dr. Jones. I think there could still be a
component of AC [joint] arthritis, biceps tendinitis, and a partial-thickness cuff tearing on the
articular side that was not necessarily addressed on [the] lasts surgery.” He requested
authorization for surgery.
On January 15, 2014 OWCP advised that it had authorized surgery and would return
appellant to the periodic rolls. On January 23, 2014 appellant underwent a left shoulder
extensive debridement, an open distal clavicle excision, and an open subpectoral biceps
tenodesis.
On February 3, 2014 Dr. Irion found that appellant could work using only his right side.
On February 5, 2014 he noted that appellant was 10 days status post left shoulder surgery.
Dr. Irion opined that appellant could perform light duty using only one arm.
On February 10, 2014 OWCP paid appellant compensation for total disability from
July 13 through October 4, 2013. On April 8, 2014 it paid him compensation for total disability
from October 5, 2013 through April 5, 2014.
By decision dated February 20, 2014, OWCP modified its June 26, 2013 loss of wageearning capacity determination. It determined that it issued the loss of wage-earning capacity
determination in error as appellant worked in a permanent position as a tractor operator on the
date of injury, but received a job offer in an unrelated position for a term period.
In an e-mail dated February 26, 2014, the employing establishment related that appellant
had always worked as a term employee. A notification of personnel action indicated that he
returned to duty as a tractor operator on January 6, 2013 in an indefinite position.
On March 14, 2014 Dr. Irion diagnosed status post left shoulder open distal clavicle
excision, open subpectoral biceps tenodesis, and rotator cuff debridement. He recommended
physical therapy and found that appellant could perform modified duty with no lifting over 20 to
25 pounds on the left side. In a work restriction evaluation dated April 13, 2014, Dr. Irion
3

indicated that appellant was not able to perform his usual employment as he was recovering from
shoulder surgery. He opined that he could perform light duty for eight hours per day with
restrictions of reaching for three hours per day, reaching over the shoulder for one hour per day,
operating a motor vehicle at work and to and from work for four hours per day, performing
repetitive elbow movements for four hours per day and pushing, pulling, and lifting up to 25
pounds for four hours per day. Dr. Irion further found that appellant could squat and climb for
four hours per day with 25 pounds of weight.
By decision dated April 22, 2014, OWCP rescinded its February 20, 2014 decision. It
found that it had properly reduced appellant’s compensation in its June 26, 2013 loss of wageearning capacity determination. OWCP determined that a temporary job was proper for a loss of
wage-earning capacity as he was a temporary employee when he was injured.
On April 24, 2014 OWCP advised appellant of its preliminary determination that he
received a $15,008.48 overpayment of compensation for the period July 13, 2013 to January 22,
2014 because it paid him compensation to which he was not entitled. It calculated the
overpayment by adding the $6,424.00 that it paid him from July 13 to October 5, 2013 to the
$8,584.48 that it paid him from October 5, 2013 to January 22, 2014 to find an overpayment of
compensation in the amount of $15,008.48.2 OWCP further informed appellant of its
preliminary determination that he was without fault in the creation of the overpayment. It
requested that he complete the enclosed overpayment recovery questionnaire and submit
supporting financial documents. Additionally, OWCP notified appellant that, within 30 days of
the date of the letter, he could request a telephone conference, a final decision based on the
written evidence or a prerecoupment hearing.
On April 28, 2014 OWCP notified appellant that it proposed to terminate his
compensation based on its finding that the March 14 and April 13, 2014 reports from Dr. Irion
established that he had no further employment-related disability.
By decision dated June 6, 2014, OWCP finalized its finding that appellant received an
overpayment of compensation in the amount of $15,008.48 for the period July 13, 2013 through
January 22, 2014. It noted that it paid him compensation for this period even though he had no
loss of wage-earning capacity. OWCP denied waiver of recovery of the overpayment after
noting that it had not received a response to its preliminary determination. It instructed appellant
to forward a check for the entire amount of the overpayment.
In a decision dated June 13, 2014, OWCP terminated appellant’s compensation effective
June 29, 2014. It determined that the evidence established that he had no further disability due to
his employment injury. OWCP found that it was not required to modify the prior loss of wageearning capacity determination given its finding that appellant had no further employmentrelated disability.
On appeal, appellant contends that he is unable to find a job due to his employment injury
and that it would cause severe hardship to repay the overpayment.

2

OWCP noted that appellant had not submitted evidence sufficient to show a change in his condition.

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LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or application.3 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.4 The power to annul an award, however, is not an arbitrary one and an
award for compensation can only be set aside in the manner provided by the compensation
statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.6 It is well
established that, once OWCP accepts the claim, it has the burden of justifying the termination or
modification of compensation benefits.7 OWCP’s burden of justifying termination or
modification of compensation holds true where it later decides that it has erroneously accepted a
claim of compensation. In establishing that its prior acceptance was erroneous, OWCP is
required to provide a clear explanation of its rationale for rescission.8
Section 8115(a) of FECA9 provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent her wage-earning capacity.10 Generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity,
must be accepted as such a measure.11 OWCP procedures provide that a determination regarding
whether actual earnings fairly and reasonably represent wage-earning capacity should be made
after an employee has been working in a given position for more than 60 days.12 However,
wage-earning capacity may not be based on an odd-lot or makeshift position designed for an
employee’s particular needs or a position that is seasonal in an area where year-round

3

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

4

John W. Graves, 52 ECAB 160 (2000).

5

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

6

L.C., 58 ECAB 493 (2007).

7

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

8

See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004).

9

See supra note 1.

10

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

11

Lottie M. Williams, 56 ECAB 302 (2005).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.6(a) (June 2013).

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employment is available.13 Reemployment of a temporary or casual worker in another temporary
or casual position is proper, as long as it will last at least 90 days.14
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,15 has been codified at 20 C.F.R. § 10.403. OWCP
calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury job.16
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained neck sprain, a left shoulder, and upper arm
sprain, displacement of a cervical intervertebral disc without myelopathy, and brachial neuritis or
radiculitis due to factors of his federal employment. It paid him disability compensation
beginning November 18, 2012.
On January 7, 2013 appellant accepted the employing
establishment’s offer of a temporary position for 90 days as an administrative support clerk. He
earned the same hourly rate as in his date-of-injury job. The employing establishment extended
the position for an additional 90 days beginning April 6, 2013. On June 26, 2013 OWCP found
that appellant had no loss of wage-earning capacity effective January 7, 2013 as his actual
earnings as an administrative support clerk fairly and reasonably represented his wage-earning
capacity. Appellant worked in the position until July 11, 2013, when his extended term expired.
There is no evidence that the position was makeshift or tailored to his specific needs and his
earnings met or exceeded those of his date-of-injury position.
In a decision dated February 20, 2014, OWCP found that it had issued the June 26, 2013
loss of wage-earning capacity determination in error as appellant worked in a permanent position
as a tractor operator at the time of his injury, but received a job offer in a temporary position. On
February 26, 2014 the employing establishment asserted that he was hired in a term position. In
a decision dated April 22, 2014, OWCP rescinded its February 20, 2014 decision based on its
finding that the offered position was proper as appellant was a temporary employee at the time of
his injury.
The Board finds that OWCP provided sufficient rationale to justify the rescission of its
modification of the June 26, 2013 wage-earning capacity determination. A loss of wage-earning
capacity determination may be based on a temporary position where the position the employee
held when injured was also temporary in nature, as long as the position lasts at least 90 days.17
OWCP explained that it had based its finding that the loss of wage-earning capacity
determination was erroneous on the fact that appellant worked as a permanent employee at the
time of his injury. The employing establishment subsequently informed OWCP, however, that
13

See P.C., Docket No. 13-939 (issued August 27, 2013); id., at Chapter 2.815.5(c)(2) (June 2013).

14

Supra note 12 at Chapter 2.815.5(c) (June 2013).

15

Albert C. Shadrick, 5 ECAB 376 (1953).

16

20 C.F.R. § 10.403(c).

17

See supra note 14.

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he was a term employee on the date of injury. OWCP provided a clear explanation for its
rescission of the modification of the loss of wage-earning capacity determination.18 It thus
properly reopened the case for further review and rescinded its modification of the June 27, 2013
loss of wage-earning capacity determination.
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA19 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.20 Section 8129(a) of FECA provides, in pertinent part, “When an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of labor by decreasing later payments to
which an individual is entitled.”21
ANALYSIS -- ISSUE 2
OWCP reduced appellant’s compensation to zero effective January 7, 2013 based on its
determination that his actual earnings as an administrative support clerk fairly and reasonably
represented his wage-earning capacity. Appellant’s term appointment ended on July 13, 2013.
OWCP paid him compensation from July 13, 2013 to January 22, 2014 after finding that it had
issued the loss of wage-earning capacity in error. On April 22, 2014, however, it rescinded its
modification of the June 26, 2013 loss of wage-earning capacity decision. Consequently, OWCP
determined that it erred in paying appellant compensation for this period based on its finding that
the loss of wage-earning capacity determination was improper. It calculated that he received an
overpayment of compensation in the amount of $15,008.48 for the period July 13, 2013 to
January 22, 2014 because it erroneously paid him compensation of $6,424.00 from July 13 to
October 5, 2013 and compensation of $8,584.48 from October 5, 2013 to January 22, 2014. The
record supports that appellant received an overpayment of compensation in the amount of
$15,008.48 from July 13, 2013 to January 22, 2014 due to OWCP’s rescission of its modification
of the June 26, 2013 loss of wage-earning capacity determination.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.”
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the

18

See R.P., Docket Nos. 14-857, 14-1536 (issued August 18, 2014); H.S., Docket No. 11-734 (issued
August 28, 2012).
19

See supra note 1.

20

5 U.S.C. § 8102.

21

Id. at § 8129(a).

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overpayment would defeat the purpose of FECA or would be against equity and good
conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.22 An individual’s liquid assets
include but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds,
and certificates of deposits.23 Nonliquid assets include but are not limited to the fair market
value of an owner’s equity in property such as a camper, boat, second home, and furnishings and
supplies.24
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.25 To establish that, a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.26
ANALYSIS -- ISSUE 3
OWCP, in its preliminary notification to appellant of the existence of the overpayment,
informed him that he needed to explain his reasons for seeking a waiver, complete the recovery
questionnaire form, and submit financial documents to support his claimed income and expenses.
The overpayment recovery questionnaire is designed to obtain the financial information to
determine whether adjustment or recovery would defeat the purpose of FECA. Appellant did not
return the overpayment recovery questionnaire provided by OWCP and did not otherwise submit
financial evidence or supporting documentation to establish that recovery of the overpayment
would defeat the purpose of FECA. He also failed to submit evidence to establish that recovery
of the overpayment would be against equity and good conscience because, in reliance on the
overpaid compensation, he relinquished a valuable right or changed his position for the worse.
Although appellant is without fault in the creation of the overpayment, he nevertheless bears
responsibility for providing the financial information necessary to support his request to waive
22

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
23

Id.

24

Id.

25

20 C.F.R. § 10.436.

26

Id. at § 10.437(b)(1).

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recovery of the overpayment. Section 10.438 of OWCP’s regulations state that a claimant who
received an overpayment of compensation is responsible for providing information about
income, expenses, and assets to OWCP so that it may determine whether recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience.27
Failure to submit the information, which will also be used to determine a repayment schedule if
necessary, without 30 days of a request from OWCP will result in a denial of a waiver of
recovery of the overpayment and no further requests for waiver will be considered until the
information is submitted.28 Consequently, the Board finds that OWCP properly denied waiver of
recovery of the overpayment.
On appeal, appellant contends that he is unable to work due to his injury and would
experience severe financial hardship repaying the overpayment. As discussed, however, OWCP
properly denied waiver as he failed to submit the requisite financial information.
LEGAL PRECEDENT -- ISSUE 4
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.29 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.30
ANALYSIS -- ISSUE 4
OWCP accepted that appellant sustained neck sprain, left shoulder, and upper arm sprain,
displacement of a cervical intervertebral disc without myelopathy, and brachial neuritis or
radiculitis. It paid him compensation for disability from November 18, 2012 until January 7,
2013, when he returned to work as an administrative support clerk. Appellant stopped work at
the conclusion of his term appointment and OWCP paid him compensation for total disability
from July 13, 2013 through January 22, 2014. However, it subsequently determined that it paid
him compensation in error for this period. Appellant underwent left shoulder surgery on
January 23, 2014. OWCP paid him compensation for total disability from January 23 until
June 29, 2014, when it terminated his compensation.
OWCP based its termination of appellant’s compensation on its finding that Dr. Irion’s
March 14, 2014 report established that he was no longer disabled due to his work injury. In a
report dated March 14, 2014, Dr. Irion found that appellant was status post left shoulder surgery
and that he could perform light duty lifting no more than 20 to 25 pounds on the left side. In an
April 13, 2014 work restriction evaluation, he determined that appellant was unable to resume
27

Id. at § 10.438(a).

28

Id. at § 10.438(b); Robert B. Hutchins, 52 ECAB 344 (2001).

29

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

30

Gewin C. Hawkins, 52 ECAB 242 (2001).

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his usual employment but could work light duty pushing, pulling, and lifting up to 25 pounds for
four hours per day, performing repetitive elbow movements for four hours per day, reaching for
three hours per day, reaching over the shoulder for one hour per day, operating a motor vehicle at
work for four hours per day. Dr. Irion’s reports do not establish that appellant has no further
disability as a result of his employment injury. Appellant’s date-of-injury position as a tractor
operator required light-to-moderate physical activity including frequent stopping, bending,
reaching, moving the arm, and leg, driving, turning and lifting and carrying equipment weighing
up to 50 pounds. Dr. Irion found that although appellant could do some light duty with no heavy
lifting, he had continued disability due to his work injury such that he was unable to return to his
date-of-injury position. In order to terminate compensation, OWCP must establish that the
disability ceased or that it is no longer related to the employment injury.31 It has the burden to
furnish rationalized medical opinion evidence that is based on a proper factual and medical
history.32 OWCP did not provide such evidence and thus the Board finds that it failed to meet its
burden of proof.
CONCLUSION
The Board finds that OWCP properly rescinded its decision modifying a June 27, 2013
loss of wage-earning capacity determination. The Board further finds that appellant received an
overpayment of compensation in the amount of $15,008.48 because OWCP erroneously paid him
compensation from July 13, 2013 to January 22, 2014 and that OWCP properly denied waiver of
recovery of the overpayment. The Board further finds, however, that OWCP improperly
terminated his compensation effective June 28, 2014 on the grounds that he has no further
employment-related disability.

31

See I.J., 59 ECAB 408 (2008).

32

See J.M., 58 ECAB 478 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the June 13, 2014 decision of the Office of
Workers’ Compensation Programs is reversed and the June 5 and April 22, 2014 decisions are
affirmed.
Issued: February 19, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND STATIONS,
Cherry Point, NC, Employer
__________________________________________

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

Docket No. 11-858
Issued: October 17, 2011

Case Submitted on the Record

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

JURISDICTION
On February 17, 2011 appellant filed a timely appeal from a November 24, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent bilateral hearing loss for
which he received a schedule award.
On appeal, appellant contends the period of the schedule award was erroneously selected.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 31, 2009 appellant, then a 56-year-old supervisor quality assurance
specialist, filed an occupational disease claim alleging that he sustained bilateral hearing loss as a
result of employment-related noise exposure. He first became aware of his hearing loss on
May 12, 2003.
On January 11, 2010 OWCP advised appellant that the evidence submitted was
insufficient to support his claim and requested that he submit additional information. It also
requested additional information from the employing establishment regarding his occupational
noise exposure.
Appellant described his work-related noise exposure that allegedly caused his hearing
loss. His positions at the employing establishment since 1980 included electrical worker; aircraft
electrical mechanic and quality assurance specialist. Appellant alleged that he was exposed to
hazardous noise from aircraft jet engines, rivet guns and pneumatic tools in all of these positions
for approximately 40 hours per week.
The employing establishment concurred with appellant’s allegations, stating that he had
worked in an office environment for approximately the past eight years, but prior to that, he
worked in a production environment where he was subjected to hazardous aircraft noise.
Appellant submitted July 9, 2008 and May 2009 audiograms. The audiograms did not
report specific numeric decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz).
In a report dated April 7, 2010, the district medical adviser (DMA) stated that the July 9, 2008
and May 2009 audiograms showed moderate to severe high-frequency hearing loss consistent
with noise-induced hearing loss. He opined, however, that the audiograms could not be used to
document a worsening in appellant’s hearing due to the limited period covered by the reports.
On April 14, 2010 OWCP requested additional information from the employing
establishment, including medical records and reports of audiograms, during the period of
appellant’s employment. The employing establishment provided reports of audiograms for the
period March 12, 1980 through May 27, 2009. A March 12, 1980 audiogram showed the decibel
losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz: 0, 0, 10, and 15 decibels for the right
ear and 5, 5, 5 and 10 decibels for the left ear. A report of an April 27, 2009 audiogram reflected
decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz: 95, 90, 104 and 105 decibels for
the right ear and 95, 180, 95 and 105 decibels for the left ear.
In a July 8, 2008 report, Dr. Roger Rath, an employing establishment physician,
diagnosed hearing loss and tinnitus. He stated that appellant had mild to moderately severe
mid/high frequency bilateral sensorineural hearing loss, which was progressive in nature. On
July 9, 2008 Dr. John P. Arrowood, Jr., a Board-certified otolaryngologist, noted that appellant
had been exposed to noise in the workplace and diagnosed mild mid-frequency and mild to
moderate high-frequency bilateral hearing loss.
OWCP routed the case record to the DMA for his review and an opinion on whether
appellant had a work-related hearing loss. On June 4, 2010 the DMA found that results of
2

appellant’s audiograms were consistent with noise-induced hearing loss and that there was a
progression of hearing loss during his federal employment. The DMA noted that the earliest
audiogram of March 12, 1980 showed normal hearing bilaterally and that, as of May 22, 2009,
appellant had developed mild to moderate, mainly high-frequency bilateral hearing loss
consistent with noise-induced hearing loss. He opined that appellant’s exposure to aircraft and
electrical machines during his employment, eight hours a day, five days a week for many years,
was responsible for the loss.
OWCP referred appellant to Dr. Charles Beasley, a Board-certified otolaryngologist, for a
second opinion examination. In a June 22, 2010 report, Dr. Beasley observed that the earliest
provided audiogram demonstrated normal hearing in both ears. An audiogram performed on
June 22, 2010 showed the decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz: 20,
25, 35, and 40 decibels for the right ear and 15, 20, 25 and 45 decibels for the left ear.
Dr. Beasley compared the audiometric findings with previous audiograms and found progression
of hearing loss during appellant’s federal employment. He diagnosed bilateral sensorineural
hearing loss due to noise exposure in the federal workplace. Dr. Beasley stated that the loss was
in excess of what would be normally predicted on the basis of presbycusis and that workplace
exposure was sufficient as to intensity and duration to have caused the loss.
On July 19, 2010 OWCP accepted appellant’s claim for bilateral hearing loss due to
work-related noise exposure. On September 28, 2010 appellant requested a schedule award.
OWCP forwarded the case record to the DMA for review and an opinion as to whether
appellant had a ratable permanent impairment due to his accepted hearing loss condition. In an
October 14, 2010 report, the DMA concluded that appellant had a three percent binaural hearing
loss pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides). According to the results of the June 22, 2010
audiogram, decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz were 20, 25, 35, and
40 decibels for the right ear (for a total of 120) and 15, 20, 25 and 45 decibels (for a total of 105).
The average loss for the right ear of 30 was then reduced by the fence of 25 to equal 5 decibels.
This amount was then multiplied by 1.5 to equal 7.5 monaural decibel loss of the right ear. The
left ear loss was averaged to 26.25 decibels, from which the fence of 25 decibels was subtracted
to equal 1.25 decibels. This loss was then multiplied by 1.5 to equal 1.875 decibels, as the left
monaural loss. To calculate the binaural loss, the lesser loss of 1.875 decibels was multiplied by
5 to equal 9.375 and was then added to the greater loss of 7.5 to total 16.875. This sum was then
divided by 6, resulting in the binaural loss of 2.8125, which is rounded to 3 percent. The DMA
determined that the date of maximum medical improvement was June 22, 2010, the date of the
audiogram on which the report was based.
By decision dated November 24, 2010, OWCP granted appellant a schedule award for
three percent binaural hearing loss. The period of the award ran from June 22 through
August 2, 2010.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from

3

loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound 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. The
A.M.A., Guides, sixth edition 2009, has been adopted by OWCP for evaluating schedule losses
and the Board has concurred in such adoption.2
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. 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. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. 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. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.3 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.4
OWCP procedures require that all audiological equipment authorized for testing meet the
calibration protocol contained in the accreditation manual of the American Speech and Hearing
Association and that audiometric test results include both bone conduction and pure tone air
conduction thresholds, speech reception thresholds and monaural discrimination scores.5
ANALYSIS
In support of his claim for an employment-related hearing loss, appellant submitted
audiograms dated July 9, 2008 and May 2009. The employing establishment provided
audiograms for the period March 12, 1980 through May 27, 2009. This evidence did not meet
OWCP’s criteria to establish an employment-related loss of hearing, as the accuracy of the
audiograms was not certified by a physician. OWCP does not have to review every uncertified
audiogram, which has not been prepared in connection with an examination by a medical
specialist.6
Due to the lack of appropriate medical evidence, OWCP properly referred appellant for a
second opinion examination by Dr. Beasley. After reviewing Dr. Beasley’s June 22, 2010
2

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

3

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

4

Robert E. Cullison, 55 ECAB 570 (2004); J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a)(4) (March 2010); see also J.H., 59 ECAB 377 (2008).
6

Robert E. Cullison, 55 ECAB 570 (2004).

4

audiogram and report, the medical adviser correctly applied OWCP’s standardized procedures to
the results. Testing for the right ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz
revealed decibel losses of 20, 25, 35 and 40 respectively. These decibel losses were properly
totaled at 120 and divided by 4 to obtain the average hearing loss per cycle of 30. The average
of 30 was then reduced by the 25 decibel fence to equal 5 decibels for the right ear. The 5
decibel figure was multiplied by the 1.5 resulting in a 7.5 percent loss for the right ear. Testing
for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of
15, 20, 25 and 45 respectively. These decibel losses were totaled at 105 and divided by 4 to
obtain the average hearing loss per cycle of 26.25. The average of 26.25 was then reduced by
the 25 decibel fence to equal 1.25 decibels for the left ear. The 1.25 was multiplied by 1.5
resulting in a 1.875 percent loss for the left ear. To calculate the binaural loss, the lesser loss of
1.875 decibels was multiplied by 5 to equal 9.375 and was then added to the greater loss of 7.5 to
total 16.875. This sum was then divided by 6, resulting in the binaural loss of 2.8125, which is
rounded to 3 percent. The Board finds that the medical adviser applied the proper standards to
the June 22, 2010 audiogram and correctly determined that appellant had a three percent binaural
hearing loss. Appellant has not established that he has more than the three percent binaural
hearing loss, for which he received a schedule award.
On appeal, appellant contends that the period of the schedule award was erroneously
selected. His contention is not supported by relevant statute and case law. The number of weeks
of compensation for a schedule award is determined by the compensation schedule at 5 U.S.C.
§ 8107(c). For complete hearing loss, the maximum number of weeks of compensation is 312
weeks. Since appellant’s impairment was three percent, he is entitled to three percent of 312
weeks, or 9.36 weeks of compensation. As to the date of maximum medical improvement, the
Board has held that such determination is based on probative medical opinion and is usually
considered to be the date of evaluation by an examining physician.7 The Board has noted a
reluctance to find a date of maximum medical improvement that is retroactive to a schedule
award, as retroactive awards often result in payment of less compensation benefits.8 In this case,
OWCP’s medical adviser properly concluded that the date of maximum medical improvement
was the date of examination by Dr. Beasley. The award therefore properly ran for 9.36 weeks
commencing on June 22, 2010.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant sustained a three percent binaural hearing loss and is not
entitled to a greater schedule award than granted.

7

See D.R., 57 ECAB 720 (2006).

8

Id. See James E. Earle, 51 ECAB 567 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the November 24, 2010 schedule award decision of
the Office of Workers’ Compensation Programs is affirmed.
Issued: October 17, 2011
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
D.O., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-398
Issued: August 19, 2011

Case Submitted on the Record

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

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from an August 16, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as it was untimely and insufficient to establish clear evidence of error. As the
last merit decision was issued January 12, 2005, the Board lacks jurisdiction to review the merits
of this case pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and did not establish clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case was previously before the Board. By decision dated August 24, 1988, the
Board affirmed a September 23, 1987 decision suspending appellant’s compensation for failing
to attend a medical appointment.3 On March 11, 1994 the Board affirmed OWCP’s denial of
appellant’s request for a lump-sum payment.4 By decision dated February 28, 2003, the Board
affirmed an April 23, 2002 decision terminating his compensation and authorization for medical
treatment effective March 26, 2000 on the grounds that he had no further disability or residuals
of his accepted cervical strain and chronic pain syndrome.5 On January 12, 2005 the Board
affirmed July 1, 2003 and February 13, 2004 decisions finding that he did not establish
continuing disability or the need for further medical treatment after March 26, 2000.6 By
decision dated June 23, 2009, the Board affirmed a May 30, 2007 nonmerit decision denying
appellant’s request for reconsideration as untimely and insufficient to show clear evidence of
error. The facts and circumstances as set forth in the prior decisions are hereby incorporated by
reference.
On November 13, 2009 appellant requested reconsideration. He asserted that he was on
compensation for 30 years from 1970 to 2000 and that during this time he received treatment for
his back and his neck. Appellant argued that OWCP accepted his back condition and paid for his
treatment. He enclosed a December 16, 2005 letter requesting reconsideration.
By decision dated February 12, 2010, OWCP denied appellant’s request for
reconsideration after finding that it was untimely and did not demonstrate clear evidence of error.
It noted that he had submitted a letter dated December 16, 2005 requesting reconsideration
following the last merit decision issued by the Board on January 12, 2005. OWCP determined,
however, that it had not received the December 16, 2005 letter before November 19, 2009. It
noted that appellant had requested reconsideration after the last merit decision on
March 11, 2007.
On July 17, 2010 appellant again requested reconsideration. He contended that OWCP
accepted that he sustained a back injury.
By decision dated August 16, 2010, OWCP denied appellant’s reconsideration request as
untimely and insufficient to show clear evidence of error. It determined that he had submitted no
evidence in support of his July 17, 2010 reconsideration request.

3

Docket No. 88-638 (issued August 24, 1988). OWCP accepted that on January 19, 1970 appellant, then a 24year-old heavy duty mechanic, sustained cervical spine sprain and somatoform psychogenic pain disorder when he
slipped on ice. The employing establishment separated appellant from employment on March 27, 1970 after a
reduction-in-force.
4

Docket No. 93-206 (issued March 11, 1994).

5

54 ECAB 456 (2003).

6

Docket No. 04-1545 (issued January 12, 2005).

2

On appeal, appellant maintains that on December 16, 2005 he filed a timely request for
reconsideration following the last merit decision dated January 12, 2005 and submitted a
supporting medical report. He also argues that his back was an accepted condition.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.7 As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence on the part of it in its most recent merit decision.
The application must establish, on its face, that such decision was erroneous.8
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to OWCP’s denial, would have created a conflict in
medical opinion requiring further development, is not clear evidence of error and would not
require a review of the case on the Director’s own motion.9 To establish clear evidence of error,
a claimant must submit evidence relevant to the issue which was decided by OWCP. The
evidence must be positive, precise and explicit and must manifest on its face that OWCP
committed an error.10
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.11 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.12
As appellant’s January 17, 2010 request for reconsideration was submitted more than one year
after the last merit decision of record, issued by the Board on January 12, 2005, it was untimely.
Consequently, he must demonstrate clear evidence of error by OWCP in denying his claim for
compensation.13

7

5 U.S.C. §§ 8101-8193.

8

20 C.F.R. § 10.607.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).

10

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
11

20 C.F.R. § 10.607(a).

12

Robert F. Stone, supra note 10.

13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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In his November 13, 2009 request for reconsideration and on appeal, appellant argued
that he submitted a timely reconsideration request following the last merit decision issued
January 12, 2005. He submitted a request for reconsideration dated December 16, 2005.
OWCP, however, did not receive the December 16, 2005 letter until November 19, 2009. The
Board has long held, in the absence of evidence to the contrary, correspondence properly
addressed and mailed in the due course of business is presumed to have arrived at the mailing
address in due course. This is known as the mailbox rule.14 The Board has held that this rule
applies equally to claimants and OWCP alike, provided that the conditions which give rise to the
presumption remain the same, namely, evidence of a properly addressed letter together with
evidence of proper mailing.15
Appellant has not submitted evidence establishing that the December 16, 2005 letter was
properly mailed. There is no certified mail receipt of copy of the envelope to show whether he
mailed this letter to the proper address or whether the envelop bore proper postage. Unlike
OWCP, law firms or other businesses, appellant is an individual and may not establish proper
mailing by business use or custom. With no evidence of proper mailing, no presumption of
receipt arises from the mailbox rule.16 Accordingly, the Board finds that appellant’s
December 16, 2005 request for reconsideration received on November 19, 2009 was not made
within one year of the January 12, 2005 decision.
On appeal and on reconsideration before OWCP, appellant maintained that OWCP
accepted that he sustained a back as well as a neck condition due to his January 19, 1970
employment injury. He asserted that OWCP paid for treatment for his back condition.
Appellant, however, has not submitted any evidence in support of his allegation or demonstrated
how his contention, even if established, would show error by OWCP in finding that he had no
further disability or need for medical treatment after March 26, 2000 due to his accepted cervical
strain and chronic pain syndrome. Additionally, the fact that OWCP authorizes and pays for
medical treatment does not establish that the condition for which treatment was rendered is
employment related.17
The evidence submitted in support of appellant’s untimely reconsideration request is
insufficient to establish clear evidence of error as it does not raise a substantial question as to the
correctness of OWCP’s decision or present evidence which on its face shows that it made an
error.18

14

See W.P., 59 ECAB 514 (2008); Michelle R. Littlejohn, 42 ECAB 463 (1991).

15

See Larry L. Hill, 42 ECAB 596 (1991).

16

See W.B., Docket No. 09-294 (issued October 2, 2009).

17

See James F. Aue, 25 ECAB 151 (1974).

18

See D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dulles, VA, Employer
__________________________________________

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Appearances:
Stephen Domenic Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-435
Issued: July 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 26, 2011 appellant, through his attorney, filed a timely appeal from the
July 29, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied her recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation beginning
September 28, 2010, when the employing establishment withdrew her limited duty under the
National Reassessment Process (NRP).
FACTUAL HISTORY
On June 25, 2002 appellant, a 35-year-old mail processor, filed an occupational disease
claim alleging that she injured her left wrist working a flat sorting machine. She did not stop
1

5 U.S.C. § 8101 et seq.

work but began limited duty.
OWCP accepted appellant’s claim for tenosynovitis
(de Quervain’s disease) of the left wrist.
Appellant claimed wage-loss compensation beginning September 28, 2010 on the
grounds that the employing establishment withdrew her limited duty under the NRP. A
supervisor confirmed that appellant was sent home on that date under the NRP.
On December 7, 2010 OWCP denied appellant’s claim for wage-loss compensation on
the grounds that the evidence did not establish that the claimed disability resulted from the
accepted left wrist tenosynovitis. An OWCP hearing representative reviewed the written record
on April 26, 2011 and affirmed. She noted that it was only after appellant’s medical limitations
were changed without explanation that the employing establishment advised that work was no
longer available. The hearing representative found no objective evidence to support any need for
a change in limitations causally related to the accepted claim.
Dr. Rebecca Gliksman, a Board-certified internist, related appellant’s history and noted
that appellant showed new clinical symptoms and signs, for which new restrictions were
appropriate. An imaging study showed degenerative joint disease at the C5-6 level with
abutment onto the cord, which, according to the study, “could be the etiology of her worsening
symptomatology … and was the basis of the additional restrictions in her workplace.”
Dr. Gliksman found that the C5-6 radiculopathy findings could explain appellant’s deltoid pain
as well as her arm pain, pain in the ulnar distribution and cuboid pain. She felt that appellant’s
new neck pain and distal arm strain was related to the repetitive strain and sprain of pushing and
pulling that occurred in her position as a postal case, even though she had a 10-pound weight
limitation.
Dr. Gliksman stated, however, that appellant had a long-standing wrist tenosynovitis
“which was an accepted claim and that did account for the majority of her restrictions.” She
stated that the tenosynovitis was still present and still causing problems, and asked that appellant
be allowed to return to work with the restrictions she had prior to 2009.
Appellant, through her representative, requested reconsideration. She argued that the
employing establishment’s withdrawal of restricted duty entitled her to compensation since
September 28, 2010. Appellant argued, and offered evidence to support, that her condition did
not significantly change since 2006. She stated that she could have continued working under her
restrictions.
In a July 29, 2011 decision, OWCP reviewed the merits of appellant’s claim and denied
modification of its prior decision. It found no evidence to corroborate the alleged recurrence of
disability.
On appeal, appellant’s representative argues that appellant was performing limited-duty
work for quite some time as a result of her work-related condition, and then the employing
establishment withdrew the limited duty.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.3
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness. This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her
work-related injury or illness is withdrawn, except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force.4
FECA Bulletin No. 09-05 outlines procedures when light-duty positions are withdrawn
under the NRP. If the claimant has been on light duty due to an injury-related condition without
an LWEC rating, or OWCP has set aside the LWEC rating, payment for total wage loss should
be made based on the Form CA-7 as long as the following criteria are met: (1) the current
medical evidence in the file (within the last 6 months) establishes that the injury-related residuals
continue; (2) the evidence of file supports that light duty is no longer available; and (3) there is
no indication that a retroactive LWEC determination should be made. Retroactive LWEC
determinations should not be made in NRP cases without approval from the district Director.
FECA Bulletin No. 09-05 states that if the medical evidence is not sufficient, OWCP should
request current medical evidence from the employing establishment and the claimant.5
ANALYSIS
The record supports that the employing establishment withdrew appellant’s limited duty
under the NRP effective September 28, 2010. Appellant filed a claim for wage loss beginning
that date. OWCP denied this claim but did not discuss FECA Bulletin No. 09-05 or properly
consider the evidence in light of the guidelines provided.
Generally, a withdrawal of limited duty constitutes a recurrence of disability under
OWCP regulations. As there is no LWEC in place, OWCP should consider whether the medical
evidence established that appellant had continuing injury-related residuals at the time of the
withdrawal. If it finds the medical evidence insufficient, OWCP should request additional

2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Id. at § 10.5(x).

5

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

evidence or refer appellant to an appropriate specialist to address residuals due to the accepted
condition.6
Accordingly, the Board will set aside OWCP’s July 29, 2011 decision and remand the
case to OWCP for further consideration. After such further development as may be necessary,
OWCP shall issue an appropriate final decision on appellant’s claim for wage-loss compensation
beginning September 28, 2010.7
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant is
entitled to wage-loss compensation beginning September 28, 2010, when the employing
establishment withdrew her limited duty under the NRP.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: July 3, 2012
Washington, DC

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

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

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

6

OWCP would have the burden of proof to show that injury-related residuals had ceased. J.A., Docket No. 111592 (issued February 13, 2012).
7

J.A., id.; H.S., Docket No. 11-1593 (issued May 3, 2012) (setting aside OWCP’s denial and remanding for
further consideration in light of FECA Bulletin No. 09-05).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Allen Park, MI, Employer
__________________________________________

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

Docket No. 15-0536
Issued: August 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 20, 2015 appellant filed a timely appeal from a December 2, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss and medical compensation benefits effective February 11, 2014 as her accepted left
elbow tendinitis had ceased without residuals; and (2) whether appellant established continuing
residuals or disability due to the accepted left elbow condition on and after February 11, 2014.
1

Appellant submitted additional evidence accompanying her request for appeal. The Board may not consider
evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This matter has been previously before the Board. By decision issued March 7, 2014,3
the Board affirmed OWCP’s August 21, 2013 decision denying appellant’s claim for disability
on intermittent dates from September 5, 2012 to January 25, 2013 due to her accepted left elbow
tendinitis. The law and facts of the case as set forth in the Board’s prior decision and order are
incorporated by reference.4
During the pendency of the prior appeal, the record indicates that appellant stopped work
on September 20, 2013. The employing establishment offered her a light-duty assignment as a
modified letter carrier. The duties required lifting up to five pounds with the left arm. Appellant
accepted the offer on September 23, 2013, but noted that she would be absent until October 14,
2013 because she was pregnant. She received compensation for total disability on the periodic
rolls from September 22 to October 19, 2013.
Appellant returned to work and OWCP paid compensation for intermittent work absences
through January 10, 2014 when there was no work available within her restrictions.
In an October 10, 2013 report, Dr. Matthew P. Steffes, an attending Board-certified
orthopedic surgeon, diagnosed left upper extremity pain with lateral epicondylitis. He released
appellant to light duty, with lifting limited to 10 pounds occasionally and with no repetitive
motion of the left arm. An October 22, 2013 magnetic resonance imaging (MRI) scan of the
cervical spine was within normal limits. On October 24, 2013 Dr. Steffes opined that appellant’s
left elbow had improved. He renewed prior work restrictions and prescribed physical therapy.
On October 25, 2013 OWCP obtained a second opinion from Dr. Emmanuel Obianwu, a
Board-certified orthopedic surgeon. Dr. Obianwu reviewed the medical record and a statement
of accepted facts. He reported appellant’s complaints of fatigue and weakness of the left arm,
pain in the left forearm, and in the lateral aspect of the left upper arm. Dr. Obianwu noted that
she held her left arm close to her trunk with a flex wrist and extended fingers. He advised
appellant that there was “nothing to gain” from such a posture. On examination of the left arm,
Dr. Obianwu found no swelling, no atrophy, full range of elbow motion, no discomfort with
resisted flexion or extension, no tenderness over the medial epicondyle, and no exquisite
tenderness over the lateral epicondyle. Phalen’s test was negative and neurologic examination
was normal. Appellant had discomfort in the left forearm with resisted dorsiflexion of the left
wrist.
Dr. Obianwu diagnosed a resolved soft tissue injury of the left upper extremity. He
opined that appellant no longer had left elbow tendinitis because the tests, used to diagnose
epicondylitis around the elbows were negative. Dr. Obianwu found no residuals from her
accepted left elbow tendinitis because all the testing on examination was negative. He released
3

Docket No. 13-2114 (issued March 7, 2014).

4

Appellant, a then 31-year-old letter carrier, filed an October 4, 2012, a (Form CA-1) traumatic injury claim,
alleging a left arm injury on June 27, 2012 when she tripped and fell while working. OWCP accepted left elbow
tendinitis.

2

appellant to full duty as a letter carrier. Dr. Obianwu recommended a two-week work hardening
program as she had “evidence of abnormal illness behavior,” as she carried her left arm in an
unusual posture which was “not a true clinical presentation.” He noted that appellant’s
subjective symptoms could have been due to laxity or weakness common in pregnancy.
In a November 21, 2013 report, Dr. Steffes diagnosed “[l]eft upper extremity pain with
lateral epicondylitis.” He limited appellant’s lifting to 15 pounds occasionally, with no repetitive
use of the left upper extremity. Dr. Steffes prescribed physical therapy.
In a December 16, 2013 letter, appellant disagreed with Dr. Obianwu. She stated that her
left elbow condition had begun in June 2012 and was unrelated to her pregnancy. Appellant
noted that her physicians both diagnosed left elbow tendinitis and claimed continued weakness
and numbness in the left arm and hand.
On December 19, 2013 Dr. Steffes opined that appellant could continue on light duty,
with lifting up to 20 pounds occasionally and no repetitive motion with the left arm.
By notice dated January 8, 2014, OWCP advised appellant of its proposal to terminate
her wage-loss and medical compensation benefits as the accepted left elbow condition had
ceased, based on Dr. Obianwu’s opinion. It afforded her 30 days to submit additional evidence
or argument.
In response, appellant submitted her February 3, 2014 statement asserting that the
accepted left elbow tendinitis remained active and partially disabling. She noted that she had
stopped physical therapy, but continued to have weakness, fatigue, and pain in the left arm.
Appellant submitted additional medical evidence. In a September 12, 2013 report,
Dr. Steffes noted that her left elbow had improved with physical therapy. He diagnosed left
upper extremity pain with lateral epicondylitis. In a January 23, 3014 report, Dr. Steffes noted
pain “about the medial and lateral elbow,” with mild tenderness at the medial lateral epicondyles.
He reported that appellant had a full range of motion of the left elbow and shoulder. Dr. Steffes
diagnosed left trapezial pain with medial/lateral epicondylitis. He noted that appellant’s
condition had improved, but that her slow recovery might be related to pregnancy and
reconditioning. Dr. Steffes released her to light duty, with occasional lifting up to 20 pounds.5
By decision dated February 11, 2014, OWCP terminated appellant’s wage-loss and
medical compensation benefits effective that day, finding the accepted left elbow tendinitis had
ceased without residuals and caused no continuing disability. It accorded the weight of the
medical evidence to Dr. Obianwu, who provided a detailed report, based on a complete, accurate
factual and medical history, explaining that the lack of objective findings on examination
established that appellant no longer had left elbow tendinitis.
In a March 1, 2014 letter, appellant requested a telephonic oral hearing. She argued that
left elbow tendinitis continued to disable her for full duty. Appellant contended that she had
5

Appellant also submitted copies of November 2013 physical therapy notes previously of record, and a medical
tracking form.

3

submitted extensive medical documentation establishing that the condition had not resolved.
During the hearing, held September 8, 2014, she asserted that OWCP improperly terminated her
compensation benefits because she remained under active medical treatment and emphasized that
Dr. Steffes had not released her to full duty.
Following the hearing, appellant submitted February 18 and March 18, 2014 reports from
Dr. Steffes, which diagnosed left trapezial pain and medial/lateral epicondylitis. Dr. Steffes
continued her light duty with lifting limited to 20 pounds and no repetitive movement of the left
upper extremity. Appellant also provided physical therapy notes dated from March through
December 2013. Dr. Steffes continued to authorize physical therapy from May 3, 2013 to
January 28, 2014. On February 6, 2014 he approved appellant’s discharge from physical therapy
as of January 28, 2014. Appellant also submitted duplicates of Dr. Steffes’ reports through
January 2014 which were previously of record.
By decision dated and finalized December 2, 2014, OWCP hearing representative
affirmed the February 11, 2014 termination, finding that Dr. Obianwu’s opinion established that
the accepted left elbow tendinitis had ceased without residuals. He noted that Dr. Obianwu
explained in detail that appellant had no objective clinical signs of a left elbow condition and
could return to full duty. The hearing representative found that appellant’s physicians did not
present objective findings or medical rationale explaining how and why she continued to be
disabled for work from the accepted left elbow injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.9 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.10

6

Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

8

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

9

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

4

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained left elbow tendinitis when she fell on a sidewalk
on June 27, 2012. Appellant remained under medical care. Dr. Steffes, an attending Boardcertified orthopedic surgeon, submitted reports from October 10, 2013 through January 23, 2014
reporting improved left elbow pain and left medial/lateral epicondylitis. He prescribed physical
therapy and set out work restrictions. Dr. Steffes noted on September 12, 2013 that appellant’s
left arm symptoms and prolonged recovery could be due to her pregnancy. However, he did not
identify objective clinical findings which demonstrated that the accepted condition remained
active. Dr. Steffes did not explain his medical reasoning for supporting a continuing causal
relationship between the accepted left elbow injury and appellant’s ongoing condition. His
opinion is therefore of diminished probative value.11
OWCP obtained a second opinion from Dr. Obianwu, a Board-certified orthopedic
surgeon, who found in an October 25, 2013 report that the accepted left elbow tendinitis had
resolved without residuals. Dr. Obianwu found no objective signs of the accepted injury on
examination. He based his opinion on a thorough clinical examination, a review of the medical
record, and a statement of accepted facts. Dr. Obianwu provided medical reasoning explaining
that appellant did not have left elbow tendinitis and that her clinical presentation was entirely
normal. He noted “evidence of abnormal illness behavior” because she held her left arm in an
unusual posture that was “not a true clinical presentation.” The Board finds that OWCP properly
terminated appellant’s wage-loss and medical compensation benefits effective February 11,
2014, based on Dr. Obianwu’s report as the weight of the medical evidence.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative, and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.12
ANALYSIS -- ISSUE 2
OWCP properly terminated appellant’s wage-loss and medical compensation benefits,
effective February 11, 2014, based on the opinion of Dr. Obianwu, a Board-certified orthopedic
surgeon and second opinion physician, who opined that the accepted left elbow tendinitis ceased
without residuals. The burden then shifted to appellant to demonstrate that the accepted injuries
caused continuing residuals or disability for work and after February 11, 2014.13

11

Deborah L. Beatty, 54 ECAB 340 (2003).

12

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101 (1992).

13

Id.

5

Following the February 11, 2014 decision terminating appellant’s wage-loss and medical
compensation benefits, appellant submitted additional medical evidence. Dr. Steffes provided
February 18 and March 18, 2014 reports diagnosing medial/lateral epicondylitis and trapezial
pain. Although he limited appellant to light duty, he did not explain how the left elbow
condition continued to partially disable her for work on and after February 11, 2014. Therefore,
Dr. Steffes’ opinion is of diminished probative value.14
Appellant also provided physical therapy notes dated from March 2013 through
January 28, 2014, including her discharge from physical therapy on January 28, 2014. As
Dr. Steffes signed these notes and they represent his medical opinion as a physician.15 Appellant
also submitted duplicates of his reports through January 2014. These documents do not address
her condition on and after February 11, 2014 and cannot establish continuing disability or
residuals following OWCP’s termination of her wage-loss and medical compensation benefits.
The Board finds that Dr. Obianwu’s report continued to represent the weight of the
medical evidence.
On appeal appellant asserts that she remained on restricted duty following her return to
work on October 2013. She worked 30 to 40 hours a week. Appellant noted that her physician
stated that her condition would improve over time. As stated above, she did not submit medical
evidence that her condition on and after February 11, 2014 was related to the accepted left elbow
tendinitis and tenosynovitis.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective February 11, 2014 as the accepted left elbow condition had
ceased without residuals. The Board further finds that appellant has not established continuing
disability or residuals of the accepted left elbow condition on and after February 11, 2014.

14

Supra note 11.

15

Roy L. Humphrey, 57 ECAB 238 (2005); James Robinson, Jr., 53 ECAB 417 (2002) (where the Board held that
as physical therapists are not physicians under FECA, their opinions are of no medical value unless signed and
reviewed by a physician).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 2, 2014 is affirmed.
Issued: August 3, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MATERIAL COMMAND, Corpus Christi, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1035
Issued: December 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 12, 2012 appellant filed a timely appeal from a March 6, 2012 merit decision of
the Office of Workers’ Compensation Programs’ (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s compensation claim as untimely.
FACTUAL HISTORY
Appellant, a retired 71-year-old aircraft examiner, filed an occupational disease claim
(Form CA-2) on March 7, 2011, alleging that he sustained a bilateral hearing loss caused by
factors of his federal employment. He stated that he first became aware that he had sustained
hearing loss on May 24, 1986; he indicated that he first realized that the condition was caused or
1

5 U.S.C. § 8101 et seq.

aggravated by his employment on August 1, 1989. Appellant retired from federal employment
on December 31, 2005.
In support of his claim, appellant submitted results of a February 21, 2011 audiogram
which showed that he had mild to severe bilateral, sensorineural hearing loss.
By letter dated March 28, 2011, OWCP advised appellant that the evidence he submitted
was not sufficient to establish that he provided timely notification of his work injury and that he
needed to submit additional factual and medical evidence in support of his claim. It stated that he
had 30 days to submit the requested information.
In a statement dated April 14, 2011, appellant contended that he did not file within three
years of knowing his hearing loss was work related because he was not aware of the three-year
limitation for filing a claim. He submitted results of employing establishment audiograms,
conducted pursuant to a hearing conservation program, dated May 28, 1985, May 20, 1986 and
July 18, 1995 which showed varying degrees of bilateral hearing loss.
By decision dated May 6, 2011, OWCP denied appellant’s claim, finding that he failed to
file a timely claim under section 8122. It advised him that in a case of latent disability, the time for
filing a claim does not begin to run until the employee has a compensable disability and is aware or
by the exercise of reasonable diligence should have been aware, of the causal relationship of the
compensable disability to his employment. OWCP stated that the time for giving notice of injury
begins to run when the employee is aware or by the exercise of reasonable diligence should have
been aware, that the condition is causally related to employment, whether or not there is a
compensable disability. It found that appellant did not file his claim within three years of the date
of injury and that he had not established that his immediate supervisor had actual knowledge
within 30 days of the date of injury. OWCP found that there was insufficient medical evidence
supporting a hearing loss in the reports appellant submitted dated 1985, 1986 and 1995. It further
found that, as appellant retired from the employing establishment on December 31, 2005, the last
date he could have filed a timely claim would have been December 31, 2008.
By letter dated June 3, 2011, appellant requested a review of the written record.
By decision dated September 22, 2011, OWCP’s hearing representative affirmed the
May 6, 2011 decision.
By letter dated January 26, 2012, appellant requested reconsideration. By decision dated
March 6, 2012, OWCP denied modification of the September 22, 2011 decision.
LEGAL PRECEDENT
Section 8122(a) of FECA states, “an original claim for compensation for disability or
death must be filed within three years after the injury or death.”2 Section 8122(b) provides that
in latent disability cases, the time limitation does not begin to run until the claimant is aware, or
by the exercise of reasonable diligence should have been aware, of the causal relationship
2

5 U.S.C. § 8122(a).

2

between his employment and the compensable disability.3 The Board has held that, if an
employee continues to be exposed to injurious working conditions after such awareness, the time
limitation begins to run on the last date of this exposure.4 A claim, however, would still be
regarded as timely under section 8122(a)(1) of FECA if the immediate superior had actual
knowledge of the injury within 30 days. The knowledge must be such as to put the immediate
superior reasonably on notice of an on-the-job injury or death.5
ANALYSIS
In the present case, appellant stated that he became aware of his alleged bilateral hearing
loss and its relationship to his federal employment on August 1, 1989. As noted above, the time
for filing a claim in a case of latent disability does not begin to run until the employee has a
compensable disability and is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship of the compensable disability to his employment. Appellant did
not file his claim within three years of the date he became aware of his latent disability and its
relationship to his employment, which he stated occurred on August 1, 1989.
The time limitation would be extended if appellant continued to be exposed to the factors
of employment which caused the injury. He retired from the employing establishment on
December 31, 2005 and was last exposed to factors of employment on that date. Therefore, the
last date appellant could have filed a timely claim due to continued exposure to factors of
employment would have been December 31, 2008.
However, there is evidence of record indicating that appellant’s immediate supervisor
was provided with actual knowledge of the injury within 30 days of the injury. The Board has
held that a program of annual audiometric examinations conducted by an employing
establishment may constructively establish actual knowledge of a hearing loss such as to put the
immediate supervisor on notice of an on-the-job injury.6
Appellant has submitted employing establishment audiograms from 1985, 1986 and
1995, which on their face are entitled to “hearing conservation data.” These audiograms do
establish an increasing hearing loss through the years of appellant’s employment. While these
audiograms do not address causal relationship, the issues of causal relationship and timeliness of
a claim are separate and distinct. The Board finds that these audiograms do establish timely
constructive notice on part of the employing establishment of appellant’s alleged injury.
The Board will set aside the March 6, 2012 OWCP decision and remand the case for
evaluation of appellant’s hearing loss claim by a district medical adviser. After such further
development as necessary, OWCP shall issue an appropriate decision.

3

5 U.S.C. § 8122(b).

4

J.P., 59 ECAB 178 (2007); Linda J. Reeves, 48 ECAB 373 (1997).

5

Id.

6

Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987).

3

CONCLUSION
The Board finds that OWCP improperly denied appellant’s compensation claim on the
grounds that his claim was not filed within the applicable time limitation provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this opinion.
Issued: December 3, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4