United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
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DEPARTMENT OF THE AIR FORCE, AIR )
FORCE
TECHNICAL
APPLICATIONS )
CENTER, PATRICK AIR FORCE BASE, FL, )
Employer
)
__________________________________________ )
M.S., Appellant

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

Docket No. 16-1039
Issued: June 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On April 20, 2016 appellant filed a timely appeal from an April 4, 2016 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
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on April 24, 2015, as alleged.
FACTUAL HISTORY
On May 6, 2015 appellant, then a 40-year-old information technology (IT) specialist
(network warfare), filed a traumatic injury claim (Form CA-1) for a lower back injury she
1

5 U.S.C. § 8101 et seq.

allegedly sustained on April 24, 2015 while moving computers from one desk to another and
“must have hurt [her] back with all the bending forward to get under the desk to connect the
computers.” Appellant further indicated that a short time later, she experienced nerve pain in her
left leg. She surmised that she had either pinched her sciatic nerve or that the left leg pain was
due to a disc injury. Appellant stopped work on April 24, 2015 and resumed work on
April 28, 2015.
Medical reports dated April 28, 29, 30, May 1, 5, 18, and 21, 2015 from Dr. Susan V.
Ville, a chiropractor, were received, which noted appellant’s treatment for lower back pain, with
referred pain into the left lower extremity. In her April 28, 2015 report, Dr. Ville indicated that
x-rays performed that day revealed normal osseous integrity, with a slight left lateral list from L5
cephalad. Sacroiliac (S1) joints were clear and other findings were within normal limits. An
impression was provided of left lumbar radiculitis, lumbalgia, lumbar facet syndrome, left
sacroiliac syndrome, and possible lumbar intervertebral disc disorder. It was recommended that
appellant consult with Dr. Steven G. Ortiz, an orthopedic surgeon, for a second opinion and
consideration of medication and/or injection. No history of injury was provided in any of the
reports.
Medical reports from Dr. Ortiz dated May 4, June 5 and 9, July 8 and 15, 2015 were
received. In his May 4, 2015 report, Dr. Ortiz noted that appellant had several weeks of low
back pain and left lower extremity radiating pain, which first occurred a few months ago and
only lasted a day before the symptoms resolved. The initial onset of pain was mostly shooting
down from the low back, through the buttock, and into the posterior thigh. However, the latest
onset of pain travelled all the way down into the lateral foot, in the sole of the foot through the
posterior thigh and calf. Currently, appellant also complained of numbness and tingling along
the same distribution. Dr. Ortiz specifically noted that she “did not recall a specific accident or
injury that caused this.” He also noted that, other than therapy with Dr. Ville, appellant had not
undergone any other treatment. Dr. Ortiz reported findings on physical examination, and noted
that appellant’s April 29, 2015 lumbar x-rays were normal. He recommended a lumbar magnetic
resonance imaging (MRI) scan. Dr. Ortiz indicated that appellant likely had an L5-S1 disc
herniation in the lateral recess, which caused S1 nerve root impingement on the left. He
recommended epidural steroid injections, which were administered on June 5 and 9, 2015.
A July 8, 2015 lumbar MRI scan revealed L5-S1 disc desiccation with mild disc space
narrowing. In his July 15, 2015 follow-up report, Dr. Ortiz reviewed appellant’s recent lumbar
MRI scan and recommended laminotomy and discectomy at L5-S1 on the left.
A January 7, 2016 lumbar MRI scan noted that appellant had undergone a lumbar
microdiscectomy on October 29, 2015. The most recent MRI scan revealed L5-S1 postsurgical
changes of laminectomy with mild subcutaneous edema/granulation tissue, left paracentral/
foraminal disc herniation with abutment of the traversing left S1 nerve root in the lateral recess,
moderate left neural foraminal narrowing, trace facet joint effusions, and mild-to-moderate
degenerative endplate changes. At L4-L5 there was also evidence of trace facet joint effusions
and mild degenerative endplate changes, as well as a small broad-based disc bulge.
On January 20, 2016 appellant filed a claim for compensation (Form CA-7) for
intermittent wage loss during the period June 9 through November 6, 2015.

2

In a letter dated March 1, 2016, OWCP noted that payment of a limited amount of
medical expenses had been administratively approved because as appellant’s claim appeared to
be a minor injury that resulted in minimal or no lost time from work and the employing
establishment had not controverted the claim. It noted that her claim was reopened for
consideration as a claim for wage-loss consideration (Form CA-7) had been received. OWCP
advised appellant of the deficiencies in the claim and provided her the opportunity to submit
additional factual and medical evidence. Appellant was asked to provide a written statement
which described in detail the alleged work injury and surrounding circumstances. She was also
advised to provide medical evidence from a qualified physician, which provided a firm diagnosis
and explained with medical rationale how her federal work duties on the date in question caused
an injury. Appellant was afforded 30 days to provide such evidence.
Appellant did not provide the requested narrative statement regarding the events
surrounding her claimed injury, but OWCP did receive additional medical evidence, which
included an October 17, 2015 report from Dr. Devin Kumar Datta, a Board-certified orthopedic
surgeon. Dr. Datta reported that appellant sustained a work-related injury back in April (2015)
when she was “awkwardly lifting and moving something … [and experienced] a sudden pop in
her back,” with an acute onset of back pain that went down the left buttock and left leg. Since
then, appellant’s pain had progressively worsened. Dr. Datta indicated that appellant was trying
to hold off on surgery as long as possible, but her pain was bothering her on almost a daily basis,
and it had gotten to the point where it was no longer tolerable. He further noted that prior to this
“acute event” (April 2015), appellant did not have a “longstanding history of chronic back
problems or any issues with her back….” Dr. Datta diagnosed chronic back and left leg pain,
large extruded left L5-S1 disc herniation, and mild disc desiccation at L4-L5 and L5-S1. He
recommended left L5-S1 microdiscectomy.
Appellant underwent surgery on October 29, 2015. The operative report was not
submitted into the record. However, OWCP received a copy of appellant’s presurgical and
postoperative instructions. Appellant also submitted an undated work excuse from Dr. Ortiz,
with light/limited-duty work restrictions effective November 9, 2015.
By decision dated April 4, 2016, OWCP denied appellant’s traumatic injury claim
because the evidence of record was insufficient to establish that the event(s) occurred as alleged.
It noted that the Form CA-1 description of the event did not suffice, and appellant had not
responded to its March 1, 2016 inquiry regarding the claimed work injury. OWCP further found
that appellant had not submitted any medical evidence to establish that a diagnosed medical
condition was causally related to the work injury or event.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
2

Supra note 1.

3

disability and/or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every claim regardless of
whether it claim is predicated on a traumatic injury or an occupational disease.4
Under FECA, a traumatic injury is defined as a condition of the body caused by a specific
event or incident or series of events or incidents within a single workday or shift.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6 An employee may establish
that an injury occurred in the performance of duty as alleged, but fail to establish that the
disability or specific condition for which compensation is being claimed is causally related to the
injury.7
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden of proof to establish the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.9
ANALYSIS
On her Form CA-1 appellant alleged that she must have reinjured her back on April 24,
2015 while moving computers from one desk to another, as she had to bend forward to get under
the desk to connect the computers. A short time later, she developed back pain which extended
into her left leg. Appellant did not provide any additional details of her injury. In a March 1,
2016 letter, OWCP requested that appellant provide a detailed description as to how the injury
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

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

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

T.H., 59 ECAB 388 (2008).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

9

L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002).

4

occurred. Appellant did not respond to OWCP’s questions. As such, the only factual
information regarding the alleged injury was appellant’s statement that she was moving her
computers from one desk to another and must have hurt her back bending forward to get under
the desk to connect the computers. OWCP denied the claim, finding that appellant had not
established that the claimed event occurred as alleged.
As appellant did not respond to OWCP’s request for additional factual information
pertaining to the claimed work incident, the Board finds that appellant’s statements contained in
her Form CA-1 are alone insufficient to establish fact of injury.10 Appellant used speculative
language on her Form CA-1 stating that she “must have hurt her back” when bending forward to
connect computers. No history of injury was provided in any of Dr. Ville’s reports and
Dr. Ortiz’s May 4, 2015 report noted that appellant did not recall a specific accident or injury
that caused her pain. In an October 17, 2015 report, Dr. Datta stated that appellant was
awkwardly lifting and moving “something” when she experienced a sudden pop in her back and
started having an acute onset of back pain. Additionally, appellant did not provide the factual
statement requested by OWCP or any evidence explaining how she arrived at her conclusion that
she hurt her back on April 24, 2015. As noted above, it is appellant’s burden of proof to provide
sufficient evidence to establish that she experienced the identified work factors as alleged. The
Board finds that appellant has not met her burden of proof.
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.

10

See A.S., Docket No. 16-0944 (issued November 2, 2016).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty on April 24, 2015, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL OFFICE, POST OFFICE,
Canton, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0789
Issued: March 25, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2021 1 appellant filed a timely appeal from an October 7, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated August 19, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f).
One hundred and eighty days from October 7, 2020, the date of OWCP’s last decision, was April 5, 2021. Since using
April 12, 2021, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R. § 501.3(f)(1). As appellant’s
appeal request was postmarked April 1, 2021, the appeal is, therefore, timely.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 7, 2020 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 24, 2020 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 23, 2020 she injured her right arm and shoulder when
trying to catch a heavy package that slipped out of her hand while in the performance of duty. She
stopped work on the date of injury.4
In support of her claim, appellant submitted hospital records, including a January 24, 2020
discharge summary and emergency department reports from Dr. Richard Miles, Board-certified in
emergency medicine, who diagnosed right rotator cuff strain.
By decision dated March 6, 2020, OWCP accepted the claim for sprain of right rotator cuff
capsule (right rotator cuff syndrome) and sprain of right acromioclavicular (AC) joint (right AC
joint arthrosis). It paid appellant wage-loss compensation on the supplemental rolls from March 9
through April 28, 2020.5
In a March 27, 2020 initial report, Theresa Koerber, a field nurse OWCP assigned to
appellant’s claim, noted diagnoses of right rotator cuff syndrome and sprain of right
acromioclavicular (AC) joint (right AC joint arthrosis).
In March 27 and April 3, 2020 letters and an April 6, 2020 work capacity evaluation for
musculoskeletal conditions (Form OWCP-5c), Dr. William B. Geissler, a Board-certified
orthopedic surgeon, advised that appellant could return to light-duty work with restrictions of no
reaching overhead, pushing, pulling, or lifting over five pounds. He indicated that appellant
received an injection to the right shoulder and was undergoing physical therapy treatment for her
diagnosed rotator cuff syndrome. Dr. Geissler also provided restrictions limiting his work
schedule to 6:00 a.m. to 6:00 p.m.
On May 15, 2020 the employing establishment offered appellant a limited-full-time
position as a modified rural carrier, effective May 23, 2020. The duties included: surface visibility
scanning for two to four hours per day and quality checks on mail transport equipment for four to
seven hours per day. The tour of duty was from 9:30 p.m. to 6:00 a.m. The physical requirements
included: no pulling or pushing over five pounds and no reaching overhead.
In a May 22, 2020 statement, appellant noted that she had concerns about her medical
limitations and requested reasonable accommodation from the employing establishment. She
4

On January 24, 2020 the employing establishment executed an authorization for examination and/or treatment
(Form CA-16).
5
On July 31, 2020 appellant filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx968
alleging that she reinjured her right shoulder when she fainted on June 26, 2020 while in the performance of duty.
OWCP denied that claim, finding that the evidence of record was insufficient to establish the factual component of
fact of injury. This claim is not presently before the Board. The Board notes that OWCP has not administratively
combined these claims.

2

indicated that, pursuant to her doctors’ recommendations, she was unable to report to work until
her next appointment on May 27, 2020.
The employing establishment, in a May 26, 2020 letter, notified OWCP that appellant
expressed concerns over her medical limitations and refused the offer of modified assignment.
In a May 26, 2020 note, Dr. Joe W. Terry, Board-certified in family practice, noted that
appellant was on medication at night that made her drowsy and unable to drive or stay alert. He
indicated that she could only work and drive between the hours of 6:00 a.m. and 6:00 p.m.
In a May 27, 2020 medical report, Dr. Geissler indicated that appellant had been
undergoing physical therapy treatment. He conducted a physical examination and diagnosed right
rotator cuff syndrome and AC joint arthrosis. Dr. Geissler advised that appellant could return to
light-duty work with restrictions of no reaching overhead, pushing, lifting, or pulling more than
10 pounds. He also indicated that her primary doctor restricted her from working at night.
The employing establishment requested, in letters dated May 27 and 28, 2020, that OWCP
determine whether the offered position was suitable. It noted that appellant provided medical
documentation to negate the work hours identified on the offer of modified assignment and added
restriction of lifting to the physical requirement.
OWCP paid appellant wage-loss compensation on the supplemental rolls from April 29
through May 8, 2020.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 13 through June 3, 2020.
In a letter dated June 11, 2020, OWCP acknowledged receipt of appellant’s Form CA-7
and advised her that it had processed a wage-loss compensation payment for the period May 13
through 22, 2020. It also noted that the employing establishment had offered appellant a modified
temporary light-duty assignment on May 15, 2020, effective May 23, 2020, which she declined.
OWCP informed her that the duties and physical requirements of the employing establishment’s
temporary light-duty assignment were within Dr. Geissler’s April 3, 6, and May 27, 2020 work
restrictions. It also informed appellant of the provisions of 20 C.F.R. § 10.500(a) and further
advised that her entitlement to wage-loss compensation may be denied under this provision if she
did not accept the offered assignment or provide a written explanation with justification for her
refusal within 30 days. OWCP specifically requested appellant to submit evidence to support that
the assignment was no longer available or no longer accommodated her medical restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 4 through
17, 2020.
In a June 18, 2020 statement, appellant noted that she was distraught by her report time on
her modified job offer because the medication she took at night caused drowsiness and dizziness.
She contended that she signed the modified offer on May 21, 2020 and returned it to the address
given. Appellant also contended that the employing establishment notified her that, per
Dr. Geissler’s recommendation, she was not to report to work until May 28, 2020.

3

On June 19, 2020 appellant accepted the offer of modified assignment as a limited-duty
rural carrier.
In a June 26, 2020 letter, the employing establishment notified OWCP that appellant
returned to work on June 25, 2020, but on June 26, 2020 she took a muscle relaxer due to her arm
hurting and subsequently fainted while at work. It indicated that she was sent to a hospital. In a
letter of even date, Lauren W. Buffington, a nurse practitioner, verified that appellant was seen in
the emergency room that day and indicated that she could return to work with restrictions.
In a June 29, 2020 letter, Dr. Terry again noted that appellant was on medication at night
that made her drowsy and unable to drive or stay alert. He indicated that she could only work and
drive between the hours of 6:00 a.m. and 6:00 p.m. In a work status note of even date, Dr. Terry
indicated that appellant could return to full-duty work on July 7, 2020 without restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 21 through
July 14, 2020.
In a July 22, 2020 development letter, OWCP acknowledged receipt of appellant’s claim
for wage-loss compensation beginning June 21, 2020 and advised that additional evidence was
needed to establish disability from work during the claimed periods. It advised that the evidence
indicated that a temporary light-duty assignment was available within appellant’s medical
restrictions with the employing establishment for the period of claimed lost time and requested
evidence to support why she did not work the temporary light-duty assignment. OWCP afforded
appellant 30 days to submit the requested medical evidence.
In a May 27, 2020 progress report, Ms. Koerber indicated that the employing establishment
notified her that job duties within compliance of the recommended restrictions f rom Dr. Geissler
were not available for appellant at this time.
In a June 26, 2020 progress report, Ms. Koerber noted that appellant had been released to
return to limited-duty work on June 26, 2020.
In a July 20, 2020 medical report, Dr. Geissler noted appellant’s complaint that her work
duties require her to lean over pick up about 100 boxes out of bins, which aggravated and increased
her right shoulder pain. Appellant also reported that her tasks made her dizzy. Dr. Geissler noted
that in late June appellant took pain medication before passing out at work. He indicated that she
had not been back at work since her fall.
In an August 10, 2020 memorandum of telephone call (Form CA-110), OWCP notified
Ms. Koerber that appellant sustained a recurrence of disability on June 26, 2020, when she passed
out at work and reinjured her right shoulder due to the medicine she was taking.
In an August 19, 2020 Form CA-110, OWCP notified Ms. Koerber that appellant filed a
new injury claim for right shoulder injury that allegedly occurred on June 26, 2020 when she
fainted at work.
By decision dated August 19, 2020, OWCP denied appellant’s wage-loss compensation
claim for disability from work, commencing May 23, 2020, pursuant to 20 C.F.R. § 10.500(a)
based on her refusal to accept the employing establishment’s May 15, 2020 offer for a temporary
4

light-duty assignment. It explained that the evidence established that she had medical restrictions
in place, a light-duty work assignment within those restrictions was available to her, and she was
previously notified in writing that such light-duty work was available.
On September 22, 2020 appellant requested reconsideration. Along with her request, she
resubmitted copies of the January 24, 2020 hospital record, the March 27, 2020 progress report
from Ms. Koerber, and the July 20, 2020 medical report from Dr. Geissler, as well as the signed
offer of modified assignment.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber. Ms. Koerber noted that appellant continued to experience right shoulder
symptoms after the June 26, 2020 fall, when she reinjured her right shoulder. She indicated that
Dr. Geissler had recommended that appellant remain off work.
By decision dated October 7, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 10

6

Supra note 1 at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468
(issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law, nor did it advance a relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based o n the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 11
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. In support of her reconsideration request, appellant
submitted duplicative records, including a January 24, 2020 hospital record, March 27, 2020
progress report from the field nurse, and a July 20, 2020 medical report from Dr. Geissler, as well
as her signed offer of modified assignment. The Board has held that evidence or argument that
repeats or duplicates evidence previously of record has no evidentiary value and does not constitute
a basis for reopening a case. 12 Thus, this evidence is insufficient to warrant a merit review.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber, the field nurse. The underlying issue on reconsideration was whether she
had met her burden of proof to establish disability from work during the period claimed causally
related to her accepted work-related medical conditions. This is a medical question that requires
rationalized medical opinion evidence to resolve the issue.13 Certain healthcare providers such as
physical therapists, nurses, physician assistants, and social workers are not considered physicians
as defined under FECA. 14 Consequently, their medical findings and/or opinions will not suffice
for purposes of establishing entitlement to FECA benefits. 15 As Ms. Koerber’s reports do not
constitute competent medical evidence, they are, therefore, irrelevant to the underlying merit issue.
The Board has held that the submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case. 16 Therefore, appellant is not entitled to

11

See S.G., Docket No. 21-0067 (issued August 23, 2021); K.F., Docket No. 19-1846 (issued November 3, 2020).

12

C.L., Docket No. 20-0410 (issued October 29, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018); D.K.,
59 ECAB 141 (2007); Kenneth R. Mroczkowki, 40 ECAB 855 (1989); Eugene F. Butler, 36 ECAB 393 (1984).
13

Y.L., Docket No. 20-1025 (issued November 25, 2020); M.P., Docket No. 19-1872 (issued April 15, 2020).

14

Section 8101(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA).
15

Id.

16

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

6

further review of the merits of her claim based on the third above -noted requirement under
20 C.F.R. § 10.606(b)(3).17
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).19
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 7.

18
See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).
19
The Board notes that the employing establishment executed a Form CA-16. A completed Form CA-16
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);
J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Conroe, TX,
Employer
__________________________________________

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

Docket No. 20-1570
Issued: April 14, 2021

Case Submitted on the Record

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

JURISDICTION
On August 31, 2020 appellant, through counsel, filed a timely appeal from a July 23, 2020
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 to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing loss,
for schedule award purposes.
FACTUAL HISTORY
On November 25, 2019 appellant, then a 56-year-old air interdiction agent, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss in both ears due
1

5 U.S.C. § 8101 et seq.

to factors of his federal employment, including noise from jet engines and firearms. He noted that
he first became aware of his condition on August 13, 2019 and of its relation to his federal
employment on August 20, 2019. Appellant did not stop work.
In a development letter dated December 10, 2019, OWCP informed appellant of the
deficiencies of his claim and advised him of the type of factual and medical evidence necessary to
establish his claim. It provided a questionnaire for his completion and requested that he submit a
narrative medical report from his physician, which contained a detailed description of findings and
diagnoses, explaining how his employment duties caused or aggravated his medical condition. In
a separate development letter of even date, OWCP requested that the employing establishment
provide additional information regarding appellant’s exposure to noise due to factors of his federal
employment, including comments from a knowledgeable supervisor regarding the accuracy of his
statements. It afforded both parties 30 days to respond.
Appellant submitted a December 30, 2019 audiogram performed by Michael Doing, a
medical assistant and audiology extern.
In a January 6, 2020 statement, appellant explained that he was exposed to noise levels of
93 to 160 decibels (dBs) from aircraft and during quarterly firearms qualifications over his 21
years of federal service. He indicated that, although he had been using hearing protection provided
by the employing establishment, he still developed some hearing loss.
On February 4, 2020 OWCP referred appellant, the case record, along with a statement of
accepted facts (SOAF) and an otologic evaluation questionnaire, to Dr. Paul W. Loeffler, a Boardcertified otolaryngologist serving as a second opinion physician, regarding the nature, extent, and
causal relationship of his hearing loss.
In his May 20, 2020 report, Dr. Loeffler reviewed the SOAF and completed the
questionnaire. He opined that appellant sustained work-related bilateral sensorineural hearing loss
and tinnitus. Dr. Loeffler recommended hearing aids. An updated audiogram dated May 20, 2020
revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hertz (Hz): 20, 20, 25, and 20,
respectively, for the right ear and 15, 15, 15, and 25, respectively, for the left ear. Dr. Loeffler
calculated zero percent hearing impairment on the left, zero percent hearing impairment on the
right, and zero percent binaural hearing impairment. Using a tinnitus impairment chart, he
determined that appellant had a tinnitus impairment rating of two percent, which corresponded
with a description of a mild impairment where the tinnitus may be muted by environmental sounds
and forgotten with activities. Dr. Loeffler then added two percent to the calculation for binaural
hearing impairment of zero percent to find a total of two percent binaural hearing impairment. He
diagnosed bilateral sensorineural hearing loss and tinnitus and attributed the conditions to noise
exposures during appellant’s federal civilian employment. Dr. Loeffler indicated that appellant
reached maximum medical improvement (MMI) on May 20, 2020.
By decision dated June 23, 2020, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss and bilateral tinnitus due to his employment-related noise exposure.

2

On June 24, 2020 OWCP referred the medical records and SOAF to Dr. Jeffrey Israel, a
Board-certified otolaryngologist serving as a district medical adviser (DMA), for calculation of
appellant’s percentage of hearing loss.
On July 1, 2020 Dr. Israel reviewed the medical evidence, including Dr. Loeffler’s report,
the December 2019 and May 20, 2020 audiograms, and the SOAF. He concluded that, in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment2 (A.M.A., Guides), appellant had zero percent monaural hearing loss in
each ear and zero percent binaural hearing loss. The DMA disagreed with Dr. Loeffler’s two
percent tinnitus rating and noted that a tinnitus award cannot be rendered when there is a zero
percent binaural hearing loss. He recommended yearly audiograms, noise protection for
appellant’s ears, and hearing aids for both hearing loss. The DMA determined that appellant had
reached MMI on May 20, 2020, the date of the latest audiogram in the records and used by
Dr. Loeffler to determine the current hearing impairment.
By decision dated July 23, 2020, OWCP denied appellant’s schedule award claim, finding
that the evidence of record was insufficient to establish that his accepted hearing loss condition
was severe enough to be considered ratable.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such 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 sixth edition of the
A.M.A., Guides5 has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.6
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 averaged.7 Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides
points out, losses below 25 dBs result in no impairment in the ability to hear everyday speech

2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Supra note 2.

6

P.H., Docket No. 20-0633 (issued October 20, 2020); V.M., Docket No. 18-1800 (issued April 23, 2019).

7

Supra note 2 at 250.

3

under everyday conditions.8 The remaining amount is multiplied by a factor of 1.5 to arrive at the
percentage of monaural hearing loss.9 The binaural loss of hearing 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.10 The Board has concurred in OWCP’s adoption of this standard for evaluating
hearing loss.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss, for schedule award purposes.
OWCP properly referred appellant to Dr. Loeffler for a second opinion examination to
evaluate his hearing loss. In his May 20, 2020 report, Dr. Loeffler noted appellant’s audiogram
findings and concluded that his binaural sensorineural hearing loss was due to his workplace noise
exposures. He determined that appellant had zero percent monaural hearing loss in each ear and
two percent binaural hearing loss for tinnitus.
On July 1, 2020 the DMA reviewed Dr. Loeffler’s report and concurred that appellant had
zero percent monaural hearing loss in each ear. Testing at the frequency levels of 500, 1,000,
2,000, and 3,000 Hz revealed losses of 20, 20, 25, and 20 dBs, respectively, for the right ear, and
15, 15, 15, and 45 dBs, respectively, for the left ear. The DMA totaled the dB losses to 85 on the
right and 90 on the left. These values, when divided by four, resulted in an average hearing loss
of 21.25 on the right and 22.5 on the left, which when reduced by the 25 dB fence, were reduced
to zero. When multiplied by 1.5, the resulting monaural loss in each ear was zero percent. The
DMA, therefore, found a total of zero percent binaural hearing loss.
The Board finds that the DMA properly concluded that appellant did not have permanent
impairment of his hearing warranting a schedule award.12 Although appellant has accepted
employment-related hearing loss, it is not sufficiently severe to be ratable for schedule award
purposes.13
The Board notes that, while Dr. Loeffler found two percent hearing loss due to tinnitus, the
DMA properly explained that because appellant’s hearing loss was not ratable, he was not entitled
to a schedule award for tinnitus. The A.M.A., Guides provide that, if tinnitus interferes with
activities of daily living (ADL’s), including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may be
8

Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

9

Id.

10

Id.

11

V.M., supra note 6.

12

B.E., Docket No. 18-1785 (issued April 1, 2019).

13

W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

4

added to a measurable binaural hearing loss.14 A schedule award for tinnitus, however, is not
payable unless the medical evidence establishes that the condition caused or contributed to a
ratable hearing loss.15 As such, the Board has held that, in the absence of ratable hearing loss, a
schedule award for tinnitus is not appropriate.16 Accordingly, the Board finds that appellant is not
entitled to a schedule award for tinnitus.17
Appellant also submitted a December 30, 2019 audiogram. However, this audiogram does
not constitute probative medical evidence because it was not certified by a physician as being
accurate. The Board has held that, if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of
hearing loss.18
The Board finds that there is no current medical evidence of record supporting that
appellant has ratable hearing loss under OWCP’s standardized procedures for rating hearing loss.19
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss, for schedule award purposes.

14

Id. See also Robert E. Cullison, 55 ECAB 570 (2004).

15

J.G., Docket No. 19-0891 (issued October 1, 2019).

16

Id. See also D.G., Docket No. 16-1486 (issued December 16, 2016).

17

G.G., Docket No. 18-0566 (issued October 2, 2018).

18

See R.H., Docket No. 18-1721 (issued March 25, 2019).

19

L.H., Docket No. 18-0696 (issued November 28, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the July 23, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 14, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 09-721
Issued: October 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2009 appellant filed a timely appeal of the October 14, 2008 merit
decision of the Office of Workers’ Compensation Programs, denying waiver of recovery of an
overpayment and directing repayment of the overpayment. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied waiver of recovery of the overpayment in
the amount of $1,049.50, for the period January 6 through 20, 2007.
FACTUAL HISTORY
This case has previously been before the Board. In an October 8, 2008 decision, the
Board found that appellant received an overpayment of compensation in the amount of $1,049.50
during the period January 6 through 20, 2007 when he returned to work.1 It further found,
1

Docket No. 08-1058 (issued October 8, 2008).

however, that the Office improperly determined that he was at fault in creating this overpayment.
The Board remanded the case to the Office to determine whether appellant was entitled to waiver
of recovery of the overpayment.2
By decision dated October 14, 2008, the Office denied waiver of recovery of the
overpayment, finding that appellant had monthly income of $7,174.00 and expenses of
$3,240.00, which established that his monthly income exceeded his monthly expenses.3 It
directed recovery of the overpayment at the rate of $100.00 per month.
LEGAL PRECEDENT
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.4 Section 8129(b) of the
Federal Employees’ Compensation Act5 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.6
Section 10.436 of the implementing regulations7 provide that recovery of an overpayment
would defeat the purpose of the Act if such recovery would cause hardship to a currently or
formerly entitled beneficiary because: the beneficiary from whom the Office seeks recovery
needs substantially all of his or her current income (including compensation benefits) to meet
current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed
a specified amount as determined by the Office from data furnished by the Bureau of Labor
Statistics.8 An individual is deemed to need substantially all of his or her income to meet current

2

On February 22, 2006 appellant, then a 32-year-old shipfitter, filed a traumatic injury claim alleging that he hurt
his back while carrying a heavy hangar foundation on that date. He stopped work on the date of injury. The Office
accepted appellant’s claim for lumbar strain, displacement of the lumbar intervertebral disc without myelopathy and
spondylosthesis. He returned to full-time full-duty work on January 6, 2007.
3

In an October 15, 2007 overpayment recovery questionnaire (Form OWCP-20) and during a January 23, 2008
telephone conference, appellant stated that his monthly income was $4,174.00 and his wife’s monthly income was
$3,000.00. His expenses included $1,300.00 for rent or mortgage, $400.00 for food, $100.00 for clothing, $450.00
for utilities, $540.00 for other expenses and credit debts of $150.00 to Citibank, $100.00 to Sears and $200.00 to
Home Depot. Appellant’s assets included $50.00 in a savings account.
4

See Robert Atchison, 41 ECAB 83, 87 (1989).

5

5 U.S.C. § 8129(b).

6

Michael H. Wacks, 45 ECAB 791, 795 (1994).

7

20 C.F.R. § 10.436.

8

An individual assets must exceed a resource based on $4,800.00 for an individual or $8,000.00 for an individual
with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a)(1)(b) (October 2004).

2

ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00.9
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 in 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.10
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver.11
ANALYSIS
In denying waiver of recovery of the overpayment, the Office reviewed appellant’s
income, expenses and assets as listed in his October 15, 2007 OWCP-20 form and reported
during the January 23, 2008 telephone conference. Appellant had monthly income of
$7,174.00,12 monthly expenses of $3,240.00 and assets of $50.00 in a savings account. The
Board finds that, as his monthly income of $7,174.00 exceeds his monthly expenses of $3,240.00
by $3,934.00, which is more than the $50.00 minimum. Appellant does not substantially need all
of his income to meet current ordinary and necessary expenses. The Board finds, therefore, that
he is not entitled to waiver under the defeat the purpose of the Act standard.13
There is no evidence in this case and appellant did not allege that he relinquished a
valuable right or changed his position for the worse in reliance on the excess compensation he
received after returning to work on January 6, 2007. The Board finds that, pursuant to its

9

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

10

20 C.F.R. § 10.437.

11

Id. at § 10.438.

12

The Office included spouse, income as appellant and his spouse lived together at the time the overpayment was
created ($4,174.00 plus & 3,000.00 spousel income).
13

See supra note 5; George A. Rodriguez, 57 ECAB 224 (2005) (Office procedures state that an individual is
deemed to need substantially all of his or her income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00); Nina D. Newborn, 47 ECAB 132 (1995).

3

regulations, the Office properly exercised its discretion in finding that recovery of the
overpayment would not be against equity or good conscience.14
On appeal, appellant contended that during the January 23, 2008 telephone conference,
the Office hearing representative denied him the opportunity to submit further financial
testimony to correct the amounts listed for his expenses. He stated that the Office determined
that he was at fault in creation of the overpayment and, thus, ineligible for waiver. A review of a
January 30, 2008 memorandum of the telephone conference indicates that appellant provided his
wife’s monthly income of $3,000.00 as requested by the Office. The memorandum does not,
however, establish that he was denied an opportunity to provide any other additional financial
information. The Board finds that appellant’s contention is not supported by the evidence of
record.
CONCLUSION
The Board finds that the Office properly denied waiver of recovery of the overpayment in
the amount of $1,049.50 for the period January 6 through 20, 2007.

14

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to reviewing those cases where
the Office seeks recovery from continuing compensation payments under the Act. As appellant is no longer
receiving wage-loss compensation in this case, the Board does not have jurisdiction with respect to recovery of the
overpayment. Ricky Greenwood, 57 ECAB 462 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the October 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE NATIONAL GUARD, Phoenix, AZ,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-1269
Issued: September 18, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 13, 2014 appellant filed a timely appeal from a May 1, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his hearing loss claim for
failing to establish fact of injury. The appeal was docketed as number 14-1269.
The Board has duly considered the matter and finds that the case is not in posture for
decision.1
On December 30, 2013 appellant, then an 83-year-old retired aircraft mechanic
supervisor, filed an occupational disease claim (Form CA-2) alleging that he developed left ear
hearing loss as a result of employment-related noise exposure. He was last exposed to
employment-related noise on October 2, 1985, the day he retired from federal employment.
Following his retirement from federal employment, appellant worked in an office and was not
exposed to employment-related noise. He indicated that he noticed additional deterioration in his
hearing and needed hearing aids for the left ear to balance the right ear hearing aid amplification.
Noise dosimetry studies were submitted for areas in which appellant worked as an aircraft
mechanic supervisor which revealed noise exposure in excess of 85 decibels. Appellant also
1

T.R., Docket No. 13-771 (issued June 25, 2013).

submitted a November 21, 2013 audiogram and a December 18, 2013 report from Dr. Isabel
Feinstein, a Board-certified otolaryngologist. Dr. Feinstein diagnosed sensorineural hearing loss,
tinnitus and Eustachian tube obstruction. She opined that appellant’s hearing loss was caused by
his prior work-related noise exposure and recommended hearing aids.
By decision dated May 1, 2014, OWCP denied appellant’s claim on the grounds that the
evidence of record failed to establish fact of injury, namely, that the occupational noise exposure
did not occur as alleged.
The record before the Board indicates that appellant had a prior hearing loss claim which
was accepted by OWCP for work-related bilateral hearing loss on April 10, 1987, File No.
xxxxxx450. Appellant was awarded a schedule award for 13 percent impairment of the right ear.
His left ear hearing loss was not severe enough to be considered ratable. Appellant was also
provided hearing amplification for the right ear only. In the May 1, 2014 OWCP decision, the
claims examiner indicated that appellant’s bilateral hearing loss claim was still open, File No.
xxxxxx450.
The Board has long recognized that if a claimant’s employment-related hearing loss
worsens in the future, he may apply for an additional schedule award for any increased
permanent impairment. The Board has also recognized that a claimant may be entitled to a
schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if
causal relationship is supported by the medical evidence of record.2 In Adelbert E. Buzzell,3 the
Board cautioned against an OWCP medical adviser providing a blanket unrationalized statement
that hearing loss does not progress following the cessation of hazardous noise exposure.4 The
Board further notes that, following medical evaluation of a claim, if the hearing loss is
determined to be nonratable for schedule award purposes, other benefits such as hearing aids
may still be payable if any employment-related hearing loss exists.5
The Board finds that OWCP did not properly develop the factual and medical evidence in
this claim. The Board notes that appellant has established fact of injury, namely, that he was
exposed to employment-related noise. The claims examiner improperly made findings that
appellant’s increased hearing loss was not due to his federal employment because he retired in
1985. However, appellant’s claim was previously accepted for bilateral hearing loss in File No.
xxxxxx450. OWCP failed to combine appellant’s hearing loss claim to determine whether he
established increased employment-related hearing loss entitling him to an additional schedule
award and hearing aids. Pursuant to its procedures, OWCP has determined that cases should be
2

J.R., 59 ECAB 710, 713 (2008).

3

34 ECAB 96 (1982).

4

The Federal (FECA) Procedure manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3)
(January 2010) notes that if the progression of a noise-induced hearing loss is to be denied, the medical adviser must
provide a well-reasoned opinion.
5

See G.M., Docket No. 11-1295 (issued January 25, 2012); F.D., Docket No. 10-1175 (issued January 4, 2011);
Federal (FECA) Procedure Manual, Part 3 – Medical, Medical Services and Supplies, Chapter 3.4003(d)(2)
(October 1990).

2

combined when correct adjudication of the issues depends on frequent cross-reference between
files.6 Therefore, for a full and fair adjudication, appellant’s claims should be combined.7 On
remand OWCP shall combine claim Nos. xxxxxx788 and xxxxxx450. Following this and any
other further development deemed necessary, OWCP shall issue an appropriate decision on
appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the May 1, 2014 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further development consistent with this
decision of the Board.
Issued: September 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6

T.H., Docket No. 14-534 (issued June 13, 2014).

7

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

3


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
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U.S. POSTAL SERVICE, POST OFFICE,
)
San Francisco, CA, Employer
)
___________________________________________ )
M.J., Appellant

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

Docket No. 08-1318
Issued: March 10, 2009

Case Submitted on the Record

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

JURISDICTION
On April 3, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs January 8, 2008 decision, which denied modification of a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award determination.
ISSUE
The issue is whether appellant has more than 34 percent permanent impairment of her
right upper extremity and 20 percent permanent impairment of her left upper extremity.
FACTUAL HISTORY
On November 18, 1994 appellant, then a 45-year-old postal clerk, filed an occupational
disease claim alleging that she sustained injuries to her arms in the performance of duty. The
Office accepted her claim for bilateral wrist strain, bilateral carpal tunnel syndrome with right
carpal tunnel release on July 28, 1997 and right shoulder impingement syndrome and shoulder

surgery to repair a torn rotator cuff on May 5, 2004.1
compensation and benefits.

Appellant received appropriate

By decision dated March 28, 2000, the Office granted appellant schedule awards for
34 percent permanent impairment of the right arm and 20 percent impairment of the left arm.
The awards covered the period March 26, 2000 to June 19, 2003.
In a March 22, 2005 report, Dr. Richard R. Tavernetti, a Board-certified orthopedic
surgeon and treating physician, noted that appellant was post rotator cuff repair of the right
shoulder with a “fairly successful result.” He opined that her permanent impairment was
unchanged. Dr. Tavernetti noted that appellant had improved her range of motion and advised
that she had forward flexion and abduction from 0 to 160 degrees, external rotation of 0 to 45
degrees and internal rotation of 0 to L5. He opined that appellant had improved about 20 degrees
in “most directions.”
On May 3, 2006 appellant filed a Form CA-7 claim for an additional schedule award.
In an August 2, 2006 report, Dr. Tavernetti noted that an examination of the right elbow
revealed extension of 8 degrees and flexion of 128 degrees compared with the left side, which
had full extension and 130 degrees of flexion. He noted that appellant had full supination and
pronation and diagnosed degenerative joint disease of the right elbow and post rotator cuff repair
of the right shoulder. Dr. Tavernetti diagnosed degenerative joint disease of the right elbow and
status post rotator cuff repair of the right shoulder. He indicated that he did not believe that this
was related to the work injury.
By letters dated August 3 and 17, 2006, the Office referred appellant for an examination
with Dr. Alan Kimelman, Board-certified in physical medicine and rehabilitation, to determine
whether she sustained a permanent impairment due to her work injury.
In an August 25, 2006 report, Dr. Kimelman reviewed appellant’s history of injury and
treatment. He noted that the bilateral median nerves showed normal findings without evidence
of mononeuropathy at the wrists and advised that normal parameters were seen in the median
nerve properties in the forearms and late F waves. Dr. Kimelman indicated that sensory and
motor radial studies revealed normal findings bilaterally. He conducted an examination and
provided range of motion findings for the right shoulder. Dr. Kimelman determined that
appellant had flexion of 145 degrees, extension of 50 degrees, abduction of 130 degrees and
adduction of 35 degrees. He noted that appellant had internal rotation of 70 degrees, external
rotation of 60 degrees and extension of 50 degrees. Dr. Kimelman opined that appellant had no
evidence of carpal tunnel syndrome; or median, ulnar or radial neuropathy in either arm.
In a November 1, 2006 report, an Office medical adviser noted appellant’s history of
injury and treatment. She utilized the American Medical Association, Guides to the Evaluation
of Permanent Impairment, (A.M.A., Guides) (5th ed. 2001) to rate impairment due to loss of

1

The record reflects that the Office doubled appellant’s claim for right rotator strain with the present claim. File
Nos. xxxxxx567 and xxxxxx096.

2

range of motion. For the right shoulder, she referred to Figure 16-402 and noted that loss of
flexion, yielded three percent impairment and zero percent for loss of extension. The Office
medical adviser referred to Figure 16-433 for loss of abduction and determined that appellant had
three percent impairment for loss of abduction and one percent for loss of adduction. She
referred to Figure 16-464 and advised that appellant had one percent impairment loss for internal
rotation and no impairment for loss of external rotation. The Office medical adviser indicated
that this would equate to eight percent impairment. Regarding impairment due to loss of strength
and sensory deficit or pain, she referred to Table 16-105 and indicated that, for the right,
appellant had a Grade 4 or 25 percent deficit. She referred to Table 16-156 and explained that
the maximum combined impairment based on the suprascapular nerve was equal to 20 percent.
The Office medical adviser multiplied the value for the loss of strength by the maximum
combined impairment for the suprascapular nerve (25 percent x 20 percent = 5 percent) and
determined that would warrant five percent impairment for loss of strength and pain. For the
median nerve distribution, the medical adviser referred to Table 16-107 and advised that the
impairment due to sensory deficit or pain was bilateral and assigned a Grade 4 or 25 percent
deficit. She determined that the maximum impairment for total sensory loss of the median nerve
was 39 percent according to Table 16-15,8 which, when multiplied by the 25 percent deficit, was
equal to 10 percent (25 percent x 39 percent = 10 percent). The Office medical adviser referred
to the Combined Values Chart9 to find total impairment of the right upper extremity as
21 percent and 10 percent for the left upper extremity. She opined that there was no additional
impairment for either extremity since the previous determination and advised that appellant
reached maximum medical improvement on August 25, 2006.
By decision dated December 28, 2006, the Office denied appellant’s claim for an
additional schedule award as the medical evidence did not establish greater impairment.
By letter dated September 28, 2007, appellant requested that her claim be reopened as her
accepted conditions had worsened. On October 20, 2007 she requested reconsideration. She
submitted a January 10, 2007 report from Dr. Tavernetti, who indicated that he had examined
appellant’s right shoulder and determined that external rotation was 45 degrees; internal rotation
was 40 degrees; forward flexion was 145 degrees; abduction was 145 degrees; and adduction
was 15 degrees. Dr. Tavernetti noted that he had utilized Figures 16-40, 16-43, 16-46 and Table

2

A.M.A., Guides 476.

3

Id. at 477.

4

Id. at 479.

5

Id. at 482.

6

Id. at 492.

7

Id. at 482.

8

Id. at 492.

9

Id. at 604.

3

16-3.10 He opined that appellant had an eight percent permanent limitation in movement, which
translated to five percent whole body impairment.
In a January 29, 2007 report, Dr. David C.M. Schiff, a Board-certified orthopedic
surgeon, advised that appellant had good passive range of motion, but her active range of motion
was “not as good as I would like and she has pain at the root of the neck.” He recommended
x-rays of the cervical spine. In a February 12, 2007 report, Dr. Schiff noted that x-rays of the
cervical spine revealed severe multilevel degenerative changes at C5-6 and C6-7 with some
changes at C4-5. He indicated that appellant should undergo a magnetic resonance imaging
(MRI) scan. In an April 23, 2007 report, Dr. Schiff, noted that appellant’s MRI scan revealed
changes in the subacromial space and biceps tendinitis. He advised physical therapy.
By decision dated January 8, 2008, the Office denied modification of the December 28,
2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act11 and its
implementing regulations12 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.13
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.14 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.15

10

Id. at 476, 477, 479, 439.

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

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

14

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
15

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

4

The Office’s procedures16 specifically 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 16-15.17
ANALYSIS
Appellant claimed an additional schedule award, contending greater impairment than her
March 28, 2000 award. On August 2, 2006 Dr. Tavernetti provided range of motion
measurements for the left arm. However, he did not reference the A.M.A., Guides or make
reference to any specific tables, figures or pages, in addressing appellant’s impairment.
Dr. Tavernetti did not provide any opinion regarding the percentage of impairment. His
subsequent report dated January 10, 2007, is of limited probative value as Dr. Tavernetti merely
provided a percentage of impairment without any explanation of how he arrived at his conclusion
pursuant to the A.M.A., Guides.18 The Board notes that Dr. Tavernetti provided a whole person
impairment rating. The Act, however, does not provide a schedule award based on whole person
impairments.19 The reports provided by Dr. Schiff, are also of limited probative value as he did
not provide any opinion on impairment.
The Office referred appellant for a second opinion examination with Dr. Kimelman. In
an August 25, 2006 report, Dr. Kimelman noted appellant’s history of injury and treatment and
provided findings on examination. On November 1, 2006 the Office medical adviser applied the
A.M.A., Guides to Dr. Kimelman’s findings. She noted that appellant reached maximum
medical improvement on August 25, 2006. For the right shoulder, the Office medical adviser
referred to Figure 16-4020 and noted that loss of flexion of 145 degrees represented three percent
impairment and extension of 50 degrees result in no impairment. She referred to Figure 16-4321
for loss of abduction and determined that for 130 degrees of abduction, appellant had three
percent impairment. The Board notes however, that this is a two percent loss for abduction. For
35 degrees of adduction, the Office medical adviser correctly found that this represented one
percent impairment. She referred to Figure 16-4622 and determined that 70 degrees of internal
rotation was a one percent impairment and no impairment resulted from 60 degrees of external
rotation. The Office medical adviser added the values for loss or range of motion and found
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808 (August 2002) (March 1995).
17

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).
18

See Shalanya Ellison, 56 ECAB 150 (2004) (schedule awards are to be based on the A.M.A., Guides; an
estimate of permanent impairment is irrelevant and not probative where it is not based on the A.M.A., Guides).
19

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither the Act, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
20

A.M.A., Guides 476.

21

Id. at 477.

22

Id. at 479.

5

eight percent impairment. However, as noted, for two percent impairment for loss of abduction,
this results in seven percent impairment for loss of range of motion. For loss of strength and
sensory deficit (pain) in the distribution of the suprascapular nerve, the Office medical adviser
referred to Table 16-10 and noted that, for the right, appellant was classified as Grade 4, which
represented a 25 percent deficit.23 She referred to Table 16-1524 and noted that the maximum
impairment for combined motor and sensory deficit of the suprascapular nerve was 20 percent.
The Office medical adviser multiplied the 25 percent deficit by the maximum impairment value
of 20 percent to find 5 percent impairment due to combined motor and sensory deficit related to
the suprascapular nerve. Regarding sensory deficit in the median nerve for both the left and right
arms, the Office medical adviser referred to Table 16-1025 and opined that appellant had a Grade
4 deficit which represented 25 percent. She determined that the maximum impairment for
sensory loss of the median nerve below the mid forearm was 39 percent under Table 16-15.26
The Office medical adviser multiplied the 25 percent deficit by 39 percent to find 9.75 percent
for sensory to each arm loss involving the median nerve. She rounded this up to 10 percent.27
The Office medical adviser referred to the Combined Values Chart28 and found that the total
impairment for the right upper extremity was 21 percent and 10 percent for the left upper
extremity. As noted, a harmless error occurred with regard to her finding of 3 percent for
abduction for the right arm, instead of 2 percent as the combined total under the Combined
Values Chart remains at 21 percent for the right arm.
Appellant has not submitted medical evidence conforming with the A.M.A., Guides
establishing that she has greater impairment.29 As she previously received schedule awards for
34 percent impairment of the right arm and 20 percent impairment of the left arm, she is not
entitled to an additional schedule award.

23

Id. at 482. Table 16-10 pertains to grading impairment for sensory deficit or pain. Table 16-11, at page 484,
pertains to grading impairment for motor deficits. Table 16-11 also provides a maximum 25 percent motor deficit
for a Grade 4 classification and the procedure for determining impairment in this table is similar to procedure in
Table 16-10.
24

A.M.A., Guides 492.

25

Id. at 482.

26

Id. at 492.

27

See Marco A. Padilla, 51 ECAB 202 (1999); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter, 3.700.3.b (October 1990) (the policy of the Office is to round the calculated percentage of
impairment to the nearest whole point).
28

A.M.A., Guides 604.

29

The Board notes that appellant retains the right to file a claim for an increased schedule award based on new
exposure or on medical evidence indicating that the progression of an employment-related condition, without new
exposure to employment factors, has resulted in a greater permanent impairment than previously calculated.
Linda T. Brown, 51 ECAB 115 (1999).

6

CONCLUSION
The Board finds that appellant has not established that she has sustained more than 34
percent permanent impairment of her right upper extremity and 20 percent permanent
impairment of her left upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2008 is affirmed.
Issued: March 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7