United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Keyport, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 14-933 & 15-92
Issued: April 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2014 appellant, through counsel, filed a timely appeal from a
November 21, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) in
OWCP File No. xxxxxx238. The Board assigned Docket No. 14-933. On June 2, 2014
appellant, through counsel, filed a timely appeal from a March 11, 2014 OWCP decision in
OWCP File No. xxxxxx368. The Board assigned Docket No. 15-92. 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 these cases.
ISSUES
The issues are: (1) whether appellant established that she sustained a recurrence of
disability beginning May 10, 2008 causally related to her accepted employment condition under
OWCP File No. xxxxxx238 in Docket No. 14-933; and (2) whether OWCP met its burden of
proof to suspend her compensation benefits in accordance with 5 U.S.C. § 8123(d) of FECA on
1

5 U.S.C. § 8101 et seq.

the grounds that she refused to cooperate with a scheduled medical examination under OWCP
File No. xxxxxx368 in Docket No. 15-92.
On appeal, counsel asserts in OWCP File No. xxxxxx238, Docket No. 14-933, that the
impartial medical examiner’s opinion is insufficiently rationalized to constitute the special
weight of the medical opinion evidence and resolve the conflict. In OWCP File No. xxxxxx368,
Docket No. 15-92, he asserts that appellant provided medical evidence showing that she was
medically unable to travel to the scheduled medical appointment.
FACTUAL HISTORY
These matters have previously been before the Board. On November 17, 2000 appellant,
then a 34-year-old clerk, filed an occupational disease claim alleging that on October 23, 2000
she experienced cervical and shoulder problems secondary to her clerk duties. OWCP assigned
OWCP File No. xxxxxx368 and accepted the condition of cervical radiculopathy and approved
right shoulder arthroscopy, which was performed on November 19, 2002 and an anterior cervical
discectomy, which was performed on August 31, 2004.
Appellant suffered a second employment injury on October 20, 2007. OWCP assigned
OWCP File No. xxxxxx238 and accepted aggravation of cervical radiculopathy. On
February 14, 2008 OWCP combined the two file numbers, with File No. xxxxxx238 serving as
the master file number.
Under OWCP File No. xxxxxx238, the Board, in a December 12, 2011 decision, set aside
a September 28, 2010 OWCP decision denying a recurrence claim.2 The Board found an
unresolved conflict in the medical opinion evidence between appellant’s treating physicians,
Drs. Gordon D. Donald and Cary D. Glastein, Board-certified orthopedic surgeons, and OWCP’s
referral physician, Dr. David I. Rubinfeld, a Board-certified orthopedic surgeon, as to whether
appellant’s claim should be expanded to include a lumbar condition and whether she sustained a
recurrence of disability beginning May 10, 2008.
Thereafter, in a June 17, 2013 decision, the Board set aside a July 17, 2012 OWCP
decision denying authorization for right shoulder surgery.3 The Board also found there was an
unresolved conflict in the medical opinion evidence between appellant’s physician, Dr. Daniel J.
Mulholland, a Board-certified orthopedic surgeon, and OWCP’s physicians, Dr. Kenneth P.
Heist, a Board-certified osteopathic orthopedic surgeon, and Dr. Aldo Iulo, a Board-certified
orthopedic surgeon, regarding whether appellant’s request for right shoulder surgery should be
authorized. The facts and circumstances of the case as set forth in the Board’s prior decisions
under both OWCP file numbers are incorporated herein by reference.
On March 8, 2012 OWCP, under OWCP File No. xxxxxx238, referred appellant to
Dr. Ian Fries, a Board-certified orthopedic surgeon, to resolve the conflict between Drs. Donald
2

Docket No. 11-565 (issued December 12, 2011).

3

Docket No. 13-230 (issued June 17, 2013).

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and Glastein, appellant’s physicians, and Dr. Rubinfeld, an OWCP referral physician, as to
whether appellant’s claim should be expanded to include a lumbar condition and whether she
sustained a recurrence of disability beginning May 10, 2008.
On March 20, 2012 Dr. Fries recommended a functional capacity evaluation (FCE),
which was performed on April 2, 2012. In a subsequent May 17, 2012 report, he based his
opinion upon a review of the medical evidence, FCE, statement of accepted facts (SOAF) and
physical examination. Dr. Fries provided a summary of appellant’s claimed recurrence and
injury history as well as a detailed summary of the medical reports and objective tests he
reviewed. He also reviewed and provided a summary of OWCP’s decisions and appellant’s
request for reconsideration. Diagnoses included: resolved C5-6 radiculopathies; anterior C3-4
and C4-5 decompression and fusion for multilevel degenerated cervical spondylosis; right
shoulder anthroscopic surgery for frayed rotator cuff, impingement and a hypermobile and
arthritic acromioclavicular joint with residual acromioclavicular clicking; right interscapular and
trapezius myalgias, chronic opioid pain maintenance; and isthmic spondylolisthesis and
degneration. Physical examination revealed tenderness on palpation of right distal clavicle and
right interscapular tenderness. Range of motion for cervical flexion was 30 degrees, 10 degrees
cervical extension, 40 degrees right rotation, 60 degrees left rotation, 20 degrees left bending,
and 30 degrees right bending. Dr. Fries reported appellant’s bilateral shoulder range of motion
as 150 degrees forward flexion while complaining of low back pain, 170 degrees reaching in
abduction, 30 degrees extension, 90 degrees external rotation, 100 degrees abduction, 50 degrees
right interanl rotation, 70 degrees left internal rotation, 30 degrees right adduction, and 40
degrees left adduction. An examation of appellant’s lumbar spine revealed tenderness over the
superior posterior iliac crest mid scapular line, some lumbosacral area soreness, pain pointing in
the right lower paralumbar area, and generalized soreness over lower lumbar spine and posterior
pelvis, more somewhat on the left rather than the right sacroiliac joint area. Dr. Fries reviewed
the April 2, 2012 FCE report and noted that she exhibited overall decreased strength and better
range of neck motion and lifting.
A May 14, 2012 electromyographic test of appellant’s upper extremities and neck were
normal as there were no abnormalities in the paracervical muscles or bilateral upper extremities.
Dr. Fries opined that appellant’s L5-S1 spondylolisthesis back pain was not work related as this
is a spontaneous condition and was first documented in 1999. He also opined that any
work-related aggravation was speculative. In concluding, Dr. Fries opined that appellant no
longer had any residuals of her accepted cervical radiculopathy or any aggravation of cervical
radiculopathy. He also opined that her lumbar spine condition and symptoms were not caused or
aggravated by her employment.
By decision dated June 22, 2012, OWCP denied appellant’s recurrence claim under
OWCP File No. xxxxxx238. It also denied her request to expand her claim to include a lumbar
condition. In reaching these determinations, OWCP found that Dr. Fries’ opinion as the
impartial medical examiner constituted the special weight of the evidence.
In a letter dated June 29, 2012, counsel requested an oral hearing before an OWCP
hearing representative of the June 22, 2012 OWCP decision under File No. xxxxxx238. The oral
hearing was held on October 24, 2012.

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By decision dated January 15, 2013, under OWCP File No. xxxxxx238, the hearing
representative vacated the June 22, 2012 decision and remanded for further development of the
evidence. He found that, while Dr. Fries provided a lengthy analysis of the medical and factual
evidence, his report contained very little analysis on the issues posed to him by OWCP.
In a February 15, 2013 supplemental report, Dr. Fries opined that appellant’s lumbar
condition was not caused or aggravated by her work injury based on the lack of supporting
objective or subjective findings. He also concluded that her recurrence of disability beginning
May 10, 2008 was unrelated to her accepted work injury.
By decision dated May 15, 2013, OWCP denied recurrence under OWCP File
No. xxxxxx238.
By letter dated May 17, 2013, counsel requested an oral hearing before the hearing
representative under OWCP File No. xxxxxx238. The hearing was held on August 29, 2013.
On July 24, 2013, under OWCP File No. xxxxxx368, OWCP referred appellant to
Dr. Michael Gordon, a Board-certified orthopedic surgeon, to resolve the conflict in the medical
opinion evidence between Dr. Mulholland, appellant’s physician, and Drs. Heist and Iulo, for
OWCP, on the issue of whether appellant’s request for right shoulder surgery should be
authorized.4 The appointment was for August 5, 2013 at 2:00 p.m.
By letter dated June 25, 2013, under OWCP File No. xxxxxx368, counsel requested proof
that OWCP followed its procedures in the selection of the physician to serve as an impartial
medical examiner.
In a letter dated July 30, 2013, counsel submitted a July 22, 2013 report from Dr. Donald
indicating that appellant was unable to attend the appointment with Dr. Gordon under OWCP
File No. xxxxxx368. He noted that her health problems precluded her from attending the
appointment as she was unable to travel such a distance although no actual distance was
specified. Counsel requested OWCP to reschedule the appointment with a physician closer to
appellant’s residence in New Jersey.
In a July 22, 2013 report, Dr. Donald indicated that appellant was unable to travel the
distance from her home to Dr. Gordon’s office due to her medical conditions. He requested
OWCP to reschedule with a physician closer to her home in New Jersey.
In a July 31, 2013 letter, OWCP informed appellant that Dr. Donald’s report was
insufficient to establish that she was unable to attend the scheduled appointment. It stated that he
did not identify her medical conditions nor provide a rationalized opinion explaining her inability
to travel to the appointment.

4

Initially OWCP, in a July17, 2013 letter, had scheduled appellant’s appointment with Dr. Gordon for August 5,
2013 at 9:30 a.m. The location noted in the July 17, 2013 letter was 11 Broadway, Suite 540, New York, NY 10004
while the address in the July 24, 2013 letter was 150 Broadway, Suite 1817, New York, NY 10038.

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On August 6, 2013 OWCP was informed that appellant did not show up for the
appointment with Dr. Gordon.
On August 7, 2013 OWCP, in OWCP File No. xxxxxx368, issued a notice proposing to
suspend appellant’s compensation on the grounds that she failed to appear for the examination
with Dr. Gordon on August 5, 2013. Appellant was informed of the penalty provision of section
8123(d) of FECA and was given 14 days to provide, in writing, good cause for her failure to
appear. She was also advised to contact OWCP immediately if she intended to report for a
rescheduled examination with Dr. Gordon.
Under OWCP File No. xxxxxx368, OWCP issued a decision on August 22, 2013 which
finalized the proposed suspension effective that day. It found that appellant did not attend the
scheduled appointment on August 5, 2013. OWCP informed her that wage-loss compensation
would be reinstated after attendance and full cooperation with an examination.
On August 26, 2013 OWCP, in OWCP File No. xxxxxx368, received an August 22, 2013
report from Dr. Donald responding to its July 31, 2013 letter. Dr. Donald stated that appellant
did not attend the scheduled examination with Dr. Gordon as she believed his opinion that she
was unable to travel to an appointment was sufficient to warrant the rescheduling of an
appointment closer to her home. He noted that it would take her approximately an hour and a
half to travel the 70 miles from her home to Dr. Gordon’s Manhattan office. Dr. Donald noted
that appellant was only able to tolerate sitting for 30 to 45 minutes. Diagnoses included cervical
herniated disc with radiculopathy and lumbar internal disc disruption superimposed on
spondylolisthesis and radiculopathy as well as spinal lumbar stenosis. Dr. Gordon related that
appellant had L4-5 herniated discs and a titanium plate in her neck.
By letter dated August 27, 2013, counsel requested an oral hearing before an OWCP
hearing representative on the August 22, 2013 decision under OWCP File No. xxxxxx368, which
was held on January 13, 2014.
On November 21, 2013 under OWCP File No. xxxxxx238, the hearing representative
affirmed the denial of appellant’s claim for a recurrence of disability beginning May 10, 2008.5
In a January 8, 2014 report, Dr. Donald reiterated his opinion that appellant’s medical
restrictions precluded her from attending the scheduled appointment with Dr. Gordon. He stated
that appellant was unable to tolerate prolonged periods of sitting particularly driving, due to
increased lower back and neck pain which was attributable to her accepted employment injuries.
By decision dated March 11, 2014, the hearing representative affirmed the August 22,
2013 decision in OWCP File No. xxxxxx368.
5

The Board notes that, following the November 21, 2013 decision in OWCP File No. xxxxxx238, OWCP
received additional evidence. However, the Board may only review evidence that was in the record at the time it
issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T.,
59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes,
54 ECAB 373 (2003).

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LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish, by the weight of the reliable, probative, and substantial evidence, a recurrence of
disability and to show that he or she cannot perform such light duty.6 As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty requirements.7
A recurrence of disability is defined as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.8 The Board has held that whether a particular injury causes
an employee to be disabled for work is a medical question that must be resolved by competent
and probative medical evidence.9 The weight of medical opinion is determined on the report of a
physician, who provides a complete and accurate factual and medical history, explains how the
claimed disability is related to the employee’s work and supports that conclusion with sound
medical reasoning.10
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.11
Section 8123(a) of FECA12 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 The implementing regulations
provide in pertinent part: “If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
6

K.C., Docket No. 08-2222 (issued July 23, 2009); Richard A. Neidert, 57 ECAB 474 (March 10, 2006).

7

C.S., Docket No. 08-2218 (issued August 7, 2009); Joseph D. Duncan, 54 ECAB 471 (2003); Roberta L.
Kaaumoana, 54 ECAB 150 (2002); Terry R. Hedman, 38 ECAB 222 (1986).
8

20 C.F.R. § 10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman,

9

See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

id.

10

See C.S., supra note 7; Sandra D. Pruitt, 57 ECAB 126 (2005).

11

G.A., Docket No. 09-2153(issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
12

5 U.S.C. § 8123(a).

13

Id.; see J.J., Docket No. 09-27 (issued February 10, 2009); Y.A., 59 ECAB 701 (2008); Darlene R. Kennedy, 57
ECAB 414 (2006); Geraldine Foster, 54 ECAB 435 (2003).

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a third physician who shall make an examination.”14 Where a case is referred to an impartial
medical specialist for the purpose of resolving a conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual and medical background must be
given special weight.15
ANALYSIS -- ISSUE 1
As the prior Board decision found, there was a conflict in the medical evidence as to the
issue of an employment-related recurrence of disability on and after May 10, 2008 and whether
appellant’s claim should be expanded to include a lumbar condition.
In the Board’s prior decision, the requirement that a physician’s opinion must be
accompanied by medical rationale was clearly stated. With respect to a recurrence of disability
as of May 10, 2008, Dr. Fries stated in his May 17, 2012 report that appellant’s recurrence of
May 10, 2008 was unrelated to her accepted employment injury and that her lumbar condition
was not employment related. However, his opinions were not accompanied by any supporting
explanation or discussion of evidence that would constitute medical rationale. Dr. Fries did not
refer to evidence as to the time period in question or explain why he did not believe there was a
recurrence of total disability. OWCP requested that he provide a supplemental report with
supporting rationale. In his February 15, 2013 supplemental report, Dr. Fries briefly stated that
appellant’s lumbar condition was not employment related due to the lack of objective and
subjective findings with no discussion or supporting rationale. While he provided a detailed
summary of the medical and factual evidence in his May 12, 2012 report, the Board finds that his
brief remarks are insufficiently rationalized. Dr. Fries also failed to provide any supporting
rationale or clarification in his supplemental report as to why he believed appellant did not
sustain a recurrence of disability on May 10, 2008 or why her claim should not be expanded to
include a lumbar condition.
As Dr. Fries’ clarification of his opinion was insufficient to resolve the conflict evidence
on this issue, the case will be referred to a new impartial medical specialist to obtain a reasoned
opinion as to whether appellant sustained a recurrence of total disability on May 10, 2008 as
claimed and whether her claim should be expanded to include a lumbar condition.16 As the
Board stated in its prior decision, resolving this issue is essential to the proper adjudication of
this claim. Following this and any other development deemed necessary, OWCP will issue a de
novo decision in the case.
On appeal, counsel argues that the reports by Dr. Fries are insufficiently rationalized and
thus cannot constitute the weight of the medical opinion evidence. As discussed above, the
Board agrees that Dr. Fries’ opinion does not constitute the special weight of the medical opinion
14

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
15

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

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Guiseppe Aversa, 55 ECAB 164 (2003).

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evidence generally afforded to an impartial medical examiner due to his lack of clarity and
supporting rationale.
LEGAL PRECEDENT -- ISSUE 2
Section 8123 of FECA authorizes OWCP to require an employee who claims disability as
a result of federal employment to undergo a physical examination as it deems necessary.17 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.18
OWCP’s federal regulations at section 10.320 provide that a claimant must submit to
examination by a qualified physician as often and at such time and places as OWCP considers
reasonably necessary.19 Section 8123(d) of FECA and section 10.323 of OWCP’s regulations
provide that, if an employee refused to submit to or obstructs a directed medical examination, his
or her compensation is suspended until the refusal or obstruction ceases.20 However, before
OWCP may invoke these provisions, the employee is provided a period of 14 days within which
to present in writing his or her reasons for the refusal or obstruction.21 If good cause for the
refusal or obstruction is not established entitlement to compensation is suspended in accordance
with section 8123 of FECA.22
ANALYSIS -- ISSUE 2
OWCP scheduled an impartial medical examination on August 5, 2013 at 2:00 p.m. in
New York, NY with Dr. Gordon. Appellant did not appear for the scheduled examination. By
decision dated August 22, 2013, OWCP suspended her compensation effective August 22, 2013
for failure to attend the scheduled examination. On March 11, 2014 the hearing representative
affirmed the August 22, 2013 decision. The Board finds that OWCP properly suspended
appellant’s compensation for failure to attend a medical examination on August 5, 2013.
On July 24, 2013 OWCP notified appellant that she was being referred for an impartial
medical examination to resolve an existing conflict of medical opinion evidence as directed by
the Board. It informed her of her obligations to attend and cooperate. The notice clearly
explained that appellant’s compensation benefits would be suspended for failure to report to or
17

Supra note 14.

18

C.S., Docket No. 09-1597 (issued February 4, 2010); J.T., 59 ECAB 293 (2008); Dana D. Hudson, 57 ECAB
298 (2006); James C. Talbert, 42 ECAB 974 (1991).
19

20 C.F.R. § 10.320; see J.C., Docket No. 09-609 (issued January 5, 2010); J.T., supra note 18; Walter L.
Jordan, 57 ECAB 218 (2005).
20

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323. See J.C., id.; Sharon Handy, 57 ECAB 446 (2006); Maura D. Fuller
(Judson H. Fuller), 56 ECAB 383 (2005).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.810.13(d) (September 2010). See J.C., id.; Dana D. Hudson, supra note 18; Lynn C. Huber, 54 ECAB
281 (2002).
22

See J.C., supra note 19; Dana D. Hudson, id.; Scott R. Walsh, 56 ECAB 353 (2005).

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for obstruction of the examination. OWCP advised her of the date and time of her scheduled
August 5, 2013 appointment with Dr. Gordon. Appellant was also provided with Dr. Gordon’s
address and telephone number. As noted, she did not appear for the appointment nor did she
attempt to reschedule the appointment prior to the designated time. Appellant’s refusal to submit
to the medical examination warrants suspension of entitlement to compensation unless she can
establish good cause for her failure to report at the scheduled time.23
The Board finds that appellant did not establish good cause for her failure to report to the
scheduled examination with Dr. Gordon. By letter dated July 31, 2013, OWCP informed her that
Dr. Donald’s report was insufficient to establish that she was unable to attend the scheduled
appointment. It notified appellant on August 7, 2013 that it proposed a suspension of her
entitlement to compensation benefits. Appellant was given 14 days to submit a valid reason for
her failure to attend the scheduled medical appointment. No evidence was submitted within the
14 days.
Appellant argued that Dr. Donald’s July 22 and August 22, 2013 reports are sufficient to
establish that she was medically unable to travel the 70 miles to see Dr. Gordon as she should not
sit for more than 30 to 45 minutes at a time. The Board finds that Dr. Donald’s objection to
appellant driving 70 miles to the scheduled examination is not a valid excuse to refuse to attend
an impartial medical examination. Appellant did not submit any medical or factual showing her
inability to get to the appointment by any other mode of transportation or that she could take
breaks in her driving to the scheduled appointment.
Appellant has not submitted sufficient evidence to establish that she was incapable of
attending the scheduled medical examination. The Board, therefore, finds that OWCP properly
suspended her right to compensation benefits effective August 22, 2013.
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.
On appeal, counsel argues that OWCP erred in suspending her compensation benefits
pursuant to section 8123(d) as she provided medical evidence showing that the scheduled
appointment was outside her ability to travel. As noted above there was no evidence showing
that appellant was unable to take breaks in traveling or could not take some other mode of
transportation to the schedule appointment.
CONCLUSION
The Board finds that the case in OWCP File No. xxxxxx238, in Docket No. 14-933, is
not in posture for decision on the issues of appellant’s recurrence claim and expansion of her
claim to include a lumbar condition. The Board further finds that in OWCP File No. xxxxxx368,
in Docket No. 15-92, OWCP met its burden of proof to suspend appellant’s compensation
23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.810.13(e) (September 2010); 20 C.F.R. § 10.320.

9

benefits due to her refusal to cooperate with a scheduled medical examination, pursuant to 5
U.S.C. § 8123(d).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 21, 2013 in OWCP File No. xxxxxx238, Docket
No. 14-933, is set aside and the case remanded for further proceedings consistent with the above
opinion. The decision of OWCP dated March 11, 2014 in OWCP File No. xxxxxx368, Docket
No. 15-92, is affirmed.
Issued: April 15, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Vandalia, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1223
Issued: January 24, 2012

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 April 26, 2011 appellant, through his attorney, filed a timely appeal from a March 28,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
an emotional condition. 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 met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 23, 2010 appellant, then a 43-year-old transportation security officer (screener)
filed an occupational disease claim alleging depression and anxiety as a result of his federal
employment. He alleged that he was treated poorly and was a lesser person since a prior injury.
Appellant felt alienated and would sit alone for 40 hours a week doing nothing but watching his
coworkers through a glass wall do the job he loved. The employing establishment controverted
the claim.
Appellant submitted a statement that he enjoyed his work but was injured in 2007. His
life took a dramatic turn and he was unable to perform his assigned duties due to his medical
limitations. Over time, appellant’s peers and supervisors began to treat him differently due to
their frustration with his limitations and the perception that he was a burden and not a team
player. He became the butt of jokes, talked about as if he did not want to work and that he was
treated as less of a person. Appellant was told by the lead transportation security officer (LTSO)
that he was “unimportant to the mission.” On occasion, the LTSO asked another LTSO to send
someone to help with a job-related task, the response was, “[appellant] ... or someone who can
actually do something?” Appellant noted an instance when a team coordinator stated to a
supervisory transportation security officer that appellant was supposed to go on his break with
the team and his reply was, “[Appellant] will go to break when I say he goes to break.” He
contended that this type of behavior was never directed at the security officers on the exit lane
and that they get to go on break with their team as scheduled. Appellant contended that,
although he occasionally would be part of Playbook activities that are within his medical
limitations, the vast majority of his time is spent in a hallway by himself behind a large piece of
glass in the exit lane at the airport. He stated that he sits alone for 40 hours a week at a podium
with a stool. Appellant stated that some passengers will jokingly ask, “what did you do wrong?”
He noted that his placement is about 10 feet from the bathroom doors and that there is an
overwhelming smell of bathroom cleaner on a regular basis. Appellant noted that while he was
monitoring the exit lane he would have to watch his coworkers do the job he had been trained for
and would prefer doing. He stated that the passengers would frequently ask questions and he felt
like more of an information person than a security officer. Appellant stated that he was
frequently forgotten for breaks or was made to wait during personnel shortages, and that this was
degrading. He noted that sometimes, to give him something to do, he was given the assignment
of standing in front of the checkpoint yelling at passengers as to what needed to be taken out of
their bags before placing them through x-ray, a position supervisors jokingly referred to as
“circus caller.” Appellant also was asked to sit at a table and hand out plastic bags for
passengers. He stated that he has been told by his physician that his medical condition will never
allow him to do required duties with the employing establishment, and that once it accepts this,
he will no longer have a job. Appellant contended that, as a result of all of these factors, he was
depressed.
By decision dated August 24, 2010, OWCP denied appellant’s claim. It found that there
was insufficient factual evidence to establish that the alleged work event incidents happened or
contributed to his depression.
In a letter dated August 10, 2010 and received by OWCP on August 25, 2010, appellant
reiterated his allegations. He listed names of persons who he stated were aware of the incidents.

2

Appellant also added specific dates that he alleged the incidents occurred, with particular
emphasis on the dates that he went on late breaks and comments made to him about the breaks.
In a statement by the employing establishment dated August 19, 2010, they indicated that
they attempted to accommodate appellant in various positions within his medical restrictions, but
within a short period of time he would state that his arm was hurting so he was removed from
those functions and that the exit lane monitoring allows him to work within his medical
restrictions. The employing establishment stated that the exit lane monitor is an important
function of airport security. It noted that appellant brought to the supervisor’s attention that he
was not getting timely breaks and the issue was addressed immediately. The employing
establishment indicates that the supervisor denied saying that appellant was unimportant and that
there was no evidence that he was being treated poorly and alienated.
Appellant requested an oral hearing before an OWCP hearing representative. At the
hearing held on December 15, 2010, he testified that in 2007 he injured his forearm, and that he
eventually had surgery for radial tunnel syndrome. Appellant stated that, when he returned to
work, he was limited in the duties he could do and the employing establishment found things for
him to do like sitting at a table and vocalizing things to passengers. He noted that he was
currently working as the exit lane monitor and that prior to that he was a baggage screener.
Appellant noted that he worked every day but that he felt “like a nothing right now.” He noted
that he was very lonely and sometimes cried on the way home. Appellant noted that the position
was supposed to be rotated but that he was not rotated. He discussed problems getting breaks.
Appellant testified that coworkers called him “exit Rowe,” called him the “circus caller” and that
on one occasion as a joke someone put a sticker on the other side of the glass where he worked
that said “please do not feed the animals.” He did not recall if he reported this incident to
management.
In a February 2, 2011 statement, Michael Perkins noted that he was a coworker of
appellant for two years. During most of that time, appellant had been on restricted duty manning
the exit lane area and unable to perform many basic functions due to physical pain on a daily
basis. The exit lane post was near the bathrooms and was unpleasant due to odors and isolation
from other coworkers. Mr. Perkins stated that appellant told him that he felt left out, was
accidentally left when others went on breaks and that he has been depressed about his
limitations. In a February 4, 2011 statement, Bill O’Brien, a coworker, noted that, because
appellant was light duty, he can only work two positions: travel document checker and exit lane
monitor. On appellant’s days off the workers took turns on the exit lane for 30 minutes at a time,
but when he was on duty, he was the primary exit lane monitor. Mr. Brien noted that appellant
was there to physically deter a breach of security, which was an important job but was very
boring. He was unaware of any incidents or less-than-favorable attitudes or statements made by
the managers regarding appellant. Appellant had not told him of any such remarks, nor did he
witness any. In a February 1, 2011 statement, William Horn, a coworker, noted that, while
working as a law enforcement officer, he observed appellant sitting at the exit lane for two hours.
He noted that numerous times appellant did not have a break, usually when things were very
busy.

3

In a decision dated March 28, 2011, OWCP’s hearing representative affirmed the
August 24, 2010 decision denying appellant’s claim finding no compensable factor of
employment had been established.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.4 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, or is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable

2

George H. Clark, 56 ECAB 162 (2004); L.H., Docket No. 10-2045 (issued July 14, 2011).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 136 (1999).

6

Cutler, supra note 3.

7
8

Id.
Charles D. Edwards, 55 ECAB 258 (2004).

4

employment factor.9 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.10
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute employment factors.11
However, for harassment of discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.12
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.13 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.14
If a claimant does implicate a factor of employment in an emotional condition case,
OWCP should then determine whether the evidence of record substantiates those factors. When
the matter asserted is a compensable factor of employment and the evidence of the matter
establishes the truth of the matter asserted, OWCP must base its decision on an analysis of the
medical evidence.15
ANALYSIS
Appellant claimed that he suffered from an emotional condition causally related to
various factors. The Board must initially review whether the claimed incidents or activities
constitute compensable factors under the provisions of FECA.
Appellant made allegations of harassment and a hostile work environment. Specifically,
he alleged numerous instances wherein he was treated as a “lesser person” by management and
by coworkers, including various instances where insulting comments were directed at him.
Vague or general allegations of perceived harassment, abuse or difficulty arising in the
9

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
10

Roger Williams, 52 ECAB 468 (2001).

11

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

12

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

13

Pamela Rice, 38 ECAB 838, 841 (1987).

14

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

15

Norma L. Blank, 43 ECAB 384, 389-90 (1992); L.Q., Docket No. 11-66 (issued September 28, 2011).

5

employment are insufficient to give rise to compensability under FECA.16 Appellant did not
submit any evidence that the alleged harassment or hostile comments were made. None of the
witness statements indicate an awareness of such incidents, and the employing establishment
denies that they occurred. Accordingly, appellant has not submitted sufficient evidence to
support his claims of harassment.
Many of the factors alleged by appellant concern the assignment of work. He contended
that he worked the exit lane, where he was made to sit all day and to watch others do the work he
loved. Appellant also noted that he would work making announcements to passengers and
handing out plastic bags. The Board has held that the assignment of work is an administrative
function of the employer and the manner in which a supervisor exercises his or her discretion
falls outside the ambit of FECA.17 Absent evidence establishing an error or abuse, a claimant’s
disagreement or dislike of such a managerial action is not a compensable factor of
employment.18 There is no evidence of abuse or error in this case. The assignments of work for
appellant were made to accommodate his physical restrictions. The jobs were a very necessary
part of the mission of the employing establishment. Accordingly, appellant did not establish a
compensable factor of employment with regards to the assignment of his work duties.
Furthermore, he has provided no evidence that the employing establishment acted abusively with
regards to the assignment of breaks. Although there is some evidence that appellant had late
breaks on occasion, the employing establishment stated that, when this was brought to their
attention, it was dealt with immediately. Accordingly, appellant has not established a
compensable factor with regard to the assignment of breaks.
Appellant stated that he was fearful of losing his job due to his inability to perform some
work assignments. The Board has held that disability is not compensable when it relates to the
fear of losing one’s job or job insecurity.19 Appellant has not met his burden of proof in
establishing compensable factors of employment in this regard.
Appellant contends that his workstation was near the airport bathrooms and he was
exposed to the smell of bathroom cleaner. Mr. Perkins also noted that appellant was exposed to
unpleasant odors from the bathrooms. These vague assertions are not sufficient to establish a
compensable factor of employment, such as harassment or discrimination by the employing
establishment.
Consequently, appellant has not established his claim for an emotional condition as he
has not established any compensable employment factors.20

16

R.P., Docket No. 08-1064 (issued November 26, 2008).

17

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

18

Id.

19

See Lillian Cutler, supra note 3; see also Purvis Nettles, 44 ECAB 623, 628 (1993).

20

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

6

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 has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2011 is affirmed.
Issued: January 24, 2012
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, KS, Employer
__________________________________________

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

Docket No. 06-2035
Issued: January 18, 2007

Case Submitted on the Record

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

JURISDICTION
On September 5, 2006 appellant filed a timely appeal of an Office of Workers’
Compensation Programs’ decision dated February 22, 2006 denying her request for
reconsideration. The record also contains a January 11, 2006 merit decision denying
modification of a wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied modification of a July 23, 2001
wage-earning capacity determination; and (2) whether the Office properly determined that the
request for reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
The Office accepted that appellant sustained chronic cervical and lumbar strains in the
performance of duty on July 18, 1996, when she was involved in a motor vehicle accident. The

claim form indicated that she returned to work on November 12, 1996. On October 4, 2000 the
employing establishment offered appellant a position as a modified sales, services and
distribution associate. The pay rate was $40,472.00 per year. Appellant accepted the position
and began work on October 21, 2000.
By decision dated July 21, 2001, the Office determined that appellant’s actual earnings
fairly and reasonably represented her wage-earning capacity. The Office found that the actual
earnings were equal to the current pay for the date-of-injury position and therefore appellant had
no loss of wage-earning capacity.
On October 6, 2005 appellant filed a recurrence of disability claim commencing
September 12, 2005. She submitted a treatment noted from Dr. S.R. Katta, a physiatrist, who
indicated that appellant had chronic lower back pain with recent exacerbation and right lumbar
radiculitis with radiological evidence of degenerative disc and joint disease. Dr. Katta advised
that appellant to avoid activity that irritates her back.
In a report dated September 28, 2005, Dr. Brian Jones, an anesthesiologist, noted a
history of back pain with an original injury in 1998 after an accident. He indicated that a
magnetic resonance imaging scan revealed a small left lateral disc protrusion at L2-3 with right
lateral disc herniation at L4-5.
Appellant also submitted a December 29, 2005 report from Dr. Thomas Smith, an
anesthesiologist, with a history noting that appellant developed symptoms “after a motor vehicle
accident.” He diagnosed chronic lumbago, which “I suspect related to chronic underlying right
sacroiliac joint syndrome suspect suffered secondary to motor vehicle accident in the past.”
Dr. Smith recommended a right sacroiliac joint block.
By decision dated January 11, 2006, the Office found that the evidence was insufficient
to warrant modification of the prior wage-earning capacity determination. Appellant requested
reconsideration by letter dated February 6, 2006. She submitted a report from Dr. Smith dated
January 13, 2006 indicating that a right sacroiliac joint block was performed. In a decision dated
February 22, 2006, the Office found that the request for reconsideration was insufficient to
warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.1
The Office’s procedure manual provides that, “if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance the CE [claims examiner] will

1

See Sharon C. Clement, 55 ECAB 552 (2004).

2

need to evaluate the request according to the customary criteria for modifying a formal loss of
wage-earning capacity.”2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS -- ISSUE 1
Appellant claimed that she was disabled due to her employment injury as of
September 12, 2005. Since the Office had issued a wage-earning capacity determination on
July 23, 2001, the Office properly considered whether modification was appropriate. A
modification is warranted if the evidence establishes a material change in the nature and extent
of the injury-related condition. In this case, however, the medical evidence is not sufficient to
establish a material change in the injury-related condition as of September 12, 2005. Dr. Katta
treated appellant on September 13, 2005 and noted a recent exacerbation of back pain, without
providing a reasoned medical opinion. He did not provide a complete history nor discuss a
material change in the employment injuries. The Board notes that the accepted injuries were
chronic cervical and lumbar strains. Appellant must establish any other diagnosed condition as
employment related and then establish a material change as of September 12, 2005 in an
employment-related condition. Dr. Katta does not provide a probative medical report on the
relevant issues.
Dr. Smith did not provide a complete history of injury, as he noted only a motor vehicle
accident in the past without providing any relevant details. He noted a right sacroiliac joint
syndrome secondary to motor vehicle accident, without providing any medical rationale on
causal relationship with the employment injury. In addition, Dr. Smith did not discuss a change
in the condition as of September 12, 2005. The Board finds that the medical evidence did not
contain a reasoned medical opinion based on a complete background on the relevant issues
presented.
The Board notes that the Office may accept a brief recurrence of disability even if the
evidence is not sufficient to establish a modification of wage-earning capacity.5 To meet her
burden of proof, the employee must show a change in the nature and extent of the injury-related

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

See Katherine T. Kreger, 55 ECAB 633 (2004).

3

condition.6 As the above discussion indicates, however, the medical evidence does not establish
a period of disability commencing September 12, 2005 causally related to an employment injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office’s implementing regulations provide that an employee may request
reconsideration of an adverse Office decision, and the request, along with supporting statements
and evidence, is called the “application for reconsideration.”7
The application for
reconsideration must set forth arguments and contain evidence that either: (1) shows that the
Office erroneously applied or interpreted a specific point of law, (2) advances a relevant legal
argument not previously considered by the Office, or (3) constitutes relevant and pertinent
evidence not previously considered by the Office.8 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one of these three requirements, the Office
will deny the application for reconsideration without reviewing the merits of the claim.
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.9
ANALYSIS -- ISSUE 2
On reconsideration appellant submitted a medical report from Dr. Smith regarding a
January 13, 2006 joint block. The evidence does not address the relevant issues with respect to
an employment-related condition as of September 12, 2005. Appellant did not submit relevant
and pertinent evidence not previously considered by the Office. In addition, she did not show
that the Office erroneously applied or interpreted a specific point of law, or advance a relevant
legal argument not previously considered by the Office. Appellant did not meet any of the
requirements of section 10.606(b)(2) and therefore the Office properly refused to reopen the case
for merit review.

6

Terry R. Hedman, 38 ECAB 222 (1986).

7

20 C.F.R. § 10.605.

8

20 C.F.R. § 10.606(b)(2).

9

Eugene F. Butler, 36 ECAB 393 (1984).

4

CONCLUSION
Appellant did not establish a modification of her wage-earning capacity determination
was warranted or establish a period of employment-related disability commencing
September 12, 2005. The application for reconsideration was properly denied without merit
review of the claim as she did not meet the requirements of 20 C.F.R. § 10.606(b)(2).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 22 and January 11, 2006 are affirmed.
Issued: January 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 14-605
Issued: June 9, 2014

Case Submitted on the Record

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

JURISDICTION
On January 23, 2014 appellant filed a timely appeal from the September 19, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish more than 10 percent
permanent impairment of each arm for which she received schedule awards.
FACTUAL HISTORY
On April 30, 2009 appellant, then a 46-year-old clerk, filed an occupational disease claim
alleging upper extremity conditions due to the performance of repetitive work duties over time.
Her claim was initially accepted for work-related bilateral carpal tunnel syndrome. It was later
1

5 U.S.C. §§ 8101-8193.

expanded to include left thumb arthritis, right rotator cuff strain, localized osteoarthritis of the
left hand, disorder of the bursae in the right shoulder and rupture of the extensor tendons in the
left hand/wrist.
On January 27, 2010 appellant underwent a right shoulder arthroscopy, arthroscopic
subacromial decompression, partial acromioplasty, partial distal claviculectomy and right
shoulder tissue graft application. At the time, she had been diagnosed with right shoulder rotator
cuff tendinitis and bursitis, partial-thickness bursal-sided rotator cuff tear of the infraspinatus and
right shoulder acromioclavicular joint pain with arthritis. On February 16, 2011 appellant
underwent left thumb trapeziectomy, tendon transfer to the left thumb metacarpal base and
interposition arthroplasty of the carpometacarpal joint. Dr. Peter Evans, an attending Boardcertified orthopedic surgeon’s, postoperative diagnoses included left thumb carpometacarpal
arthritis and de Quervain’s tenosynovitis. These procedures were authorized by OWCP.
In an October 13, 2011 report, Dr. Evans stated that appellant had reached maximum
medical improvement.
On March 27, 2012 appellant filed a claim for a schedule award due to her accepted work
injuries.
In an August 1, 2013 report, Dr. Kim L. Stearns, an attending Board-certified orthopedic
surgeon, detailed the findings of his examination of appellant’s upper extremities and concluded
that appellant had a 10 percent permanent impairment of the whole person under the standards of
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001). Regarding the calculation of appellant’s impairment, Dr. Stearns
stated:
“For her limited strength and range of motion in the shoulders she has 7 percent
impairment of the upper extremity on the right which is a 4 percent impairment of
the whole person, 6 percent impairment of the upper extremity on the left which is
4 percent impairment of the whole person, and 8 percent for her shoulders. For
her limited wrist strength and mobility there is a 4 percent impairment of the
upper extremity bilateral, 2 percent impairment of the whole person, for a
combined 10 percent impairment of the whole person based upon the allowed
conditions, physical findings and Table 16-3 on page 439 of [the fifth edition of
the A.M.A., Guides].”
OWCP referred the case to Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, and requested that he review the record,
including Dr. Stearns’ report, and provide an opinion on appellant’s arm impairments under the
standards of the sixth edition of the A.M.A., Guides.
On August 27, 2013 Dr. Slutsky discussed Dr. Stearns’ report and other medical evidence
of record and concluded that appellant had a 10 percent permanent impairment of her right arm
and a 10 percent permanent impairment of her left arm under the standards of the sixth edition of
the A.M.A., Guides. He indicated that he determined that appellant had a 10 percent impairment
of her right arm by applying the standards of Table 15-5 (Shoulder Regional Grid) on page 403

2

which involves a diagnosis-based rating scheme related to acromioclavicular joint injury or
disease. Dr. Slutsky noted that appellant’s right acromioclavicular surgery placed her under class 1
with a default value of 10 percent. He detailed appellant’s grade modifiers and applied the net
adjustment formula but determined that this calculation did not alter the finding that appellant’s
total right arm impairment was 10 percent.
Dr. Slutsky calculated that appellant had 10 percent impairment of her left arm by applying
the standards of Table 15-2 (Digit Regional Grid) on page 394 which also involves a diagnosisbased rating scheme related to thumb arthroplasty. He noted that appellant’s left thumb
arthroplasty surgery placed her under class 3 with a default value of 30 percent for the left thumb.
Dr. Slutsky detailed appellant’s grade modifiers and applied the net adjustment formula and
determined that, under Table 15-2, this calculation moved the number one space to the left of the
default value of 30 percent. Thereby, appellant had 28 percent impairment of her thumb, which
when converted to the arm under Table 15-12 on page 421, yielded a total left arm impairment of
10 percent. Dr. Slutsky also considered, under Table 15-23 on page 449, whether appellant had
additional impairment due to bilateral carpal syndrome, but found that the diagnostic testing of
appellant’s arms (including June 8, 2009 electromyogram testing) did not meet the criteria for
rating under this table. Appellant also had no rating under Table 15-3 (Wrist Regional Grid) on
page 395 because her bilateral wrist pain was nonspecific and thereby fell under “[c]lass 0” of
that table.
In a September 19, 2013 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of her right arm and 10 percent permanent impairment of her left
arm. The award ran for 62.4 weeks from August 1, 2013 to October 11, 2014 and was based on
the impairment rating of Dr. Slutsky.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

3

permanent impairment.5 A schedule award is not payable under section 8107 of FECA for an
impairment of the whole person.6
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, reference is made to Table 15-5 (Shoulder
Regional Grid) beginning on page 401. After the Class of Diagnosis (CDX) is determined from
the Shoulder Regional Grid (including identification of a default grade value), the net adjustment
formula is applied using the grade modifier for Functional History (GMFH), grade modifier for
Physical Examination (GMPE) and grade modifier for Clinical Studies (GMCS). The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7 The sixth edition
of the A.M.A., Guides also contains diagnosis-based rating schemes for digits and wrist under
Table 15-2 (Digit Regional Grid) on pages 391 to 394 and Table 15-3 (Wrist Regional Grid) on
pages 395 to 397, respectively.8 Impairment of the arms due to entrapment/compression
neuropathy is calculated under Table 15-23.9
ANALYSIS
OWCP accepted that appellant sustained work-related bilateral carpal tunnel syndrome,
left thumb arthritis, right rotator cuff strain, localized osteoarthritis of the left hand, disorder of
the bursae in the right shoulder and rupture of the extensor tendons in the left hand/wrist. On
January 27, 2010 appellant underwent a right shoulder arthroscopy, arthroscopic subacromial
decompression, partial acromioplasty, partial distal claviculectomy and right shoulder tissue graft
application. On February 16, 2011 appellant underwent left thumb trapeziectomy, tendon
transfer to the left thumb metacarpal base and interposition arthroplasty of the carpometacarpal
joint. These procedures were authorized by OWCP.
In a September 19, 2013 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of her right arm and 10 percent permanent impairment of her left
arm. The award was based on the impairment rating of Dr. Slutsky, a Board-certified
occupational medicine physician, who served as an OWCP medical adviser.10
The Board finds that, on August 27, 2013, Dr. Slutsky properly concluded that appellant
had 10 percent permanent impairment of both arms under the standards of the sixth edition of the
5

See FECA Bulletin No. 09-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
6

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

7

See A.M.A., Guides 401-11 (6th ed. 2009).

8

Id. at 391-94, 395-97.

9

Id. at 449. The text related to this table discusses the standards for when test results do not meet specific criteria
and are placed in the “[g]rade 0” category. Id.
10

Dr. Slutsky reviewed the medical evidence of record including the August 1, 2013 findings of Dr. Stearns, an
attending Board-certified orthopedic surgeon.

4

A.M.A., Guides. Appellant has not submitted medical evidence showing that she has a greater
level of impairment. Dr. Slutsky properly determined that appellant had 10 percent impairment of
her right arm by applying the standards of Table 15-5 (Shoulder Regional Grid) on page 403 which
involves a diagnosis-based rating scheme related to acromioclavicular joint injury or disease. He
noted that appellant’s right acromioclavicular surgery placed her under class 1 with a default value
of 10 percent and that grade modifier calculations did not alter this determination. Dr. Slutsky
calculated that appellant had 10 percent impairment of her left arm by applying the standards of
Table 15-2 (Digit Regional Grid) on page 394 which involves a diagnosis-based rating scheme
related to thumb arthroplasty. He noted that appellant’s left thumb arthroplasty surgery placed her
under class 3 with a default value of 30 percent of the left thumb. Dr. Slutsky indicated that
appellant’s grade modifiers changed her left thumb impairment to 28 percent, which when
converted to the arm under Table 15-12 on page 421, yielded a total left arm impairment of 10
percent.11
In his August 1, 2013 report, Dr. Stearns indicated that appellant had 10 percent
permanent impairment of the whole person under the standards of the fifth edition of the A.M.A.,
Guides. However, a schedule award is not payable under section 8107 of FECA for an
impairment of the whole person and Dr. Stearns applied the standards of an edition of the
A.M.A., Guides that was not in effect at that time.12
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish more than 10
percent permanent impairment of her right arm and 10 percent permanent impairment of her left
arm, for which she received a schedule award.

11

Dr. Slutsky also considered, under Table 15-23 on page 449, whether appellant had additional impairment due
to bilateral carpal syndrome, but found that the diagnostic testing of appellant’s arms did not meet the criteria for
rating under this table. Appellant also had no rating under Table 15-3 on page 395 because her bilateral wrist pain
was nonspecific and thereby fell under “[c]lass 0” of that table.
12

See supra notes 5 and 6. On appeal, appellant asserted that the amount of schedule award compensation he
received was improper because Dr. Evans, an attending Board-certified orthopedic surgeon, indicated that he
reached maximum medical improvement on October 13, 2011. In an October 13, 2011 report, Dr. Evans stated that
appellant had reached maximum medical improvement, but he did not provide any assessment of appellant’s arm
impairment under the relevant standards.

5

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting 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
__________________________________________
F.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Garfield Heights, OH, Employer
__________________________________________

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

Docket No. 10-1668
Issued: July 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 11, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) May 27, 2010 schedule award decision. 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 has more than a six percent impairment of his left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On August 12, 1997 appellant, then a 40-year-old custodian filed a traumatic injury claim
alleging that on that date he was squatting down to pick up the mop wringer when he injured his

1

5 U.S.C. § 8101 et seq.

lower back and hip in the performance of duty. He did not initially stop work.2 OWCP accepted
the claim for acute lumbosacral strain.3 It expanded the claim to include a herniated disc bulge at
L4-5 with radiculopathy. Appellant received appropriate compensation benefits.4
On June 2, 2007 appellant filed a claim for a schedule award and submitted medical
evidence. On July 31, 2008 OWCP granted him a schedule award for six percent permanent
impairment of the left leg due to motor and sensory deficit. The award covered a period of 17.28
weeks from May 15 to September 12, 2008.
On November 25, 2009 appellant filed a claim for a schedule award. In a letter also
dated November 25, 2009, he requested that he be examined for a schedule award.5 On
February 24, 2010 OWCP referred appellant for a second opinion, along with a statement of
accepted facts, a set of questions and the medical record to Dr. Manhal A. Ghanma, a Boardcertified orthopedic surgeon.
In a report dated March 22, 2010, Dr. Ghanma noted appellant’s history and utilized the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed.
2009) (hereinafter, A.M.A., Guides). Examination findings included no spinal listing, no
abnormal curvature, no scarring, no discoloration, no swelling, and no temperature increase or
decrease. Appellant’s thighs and calves were equal in maximum circumference. He complained
of decreased right lateral leg sensation and decreased right first web and right medial foot
sensation. Appellant had 90 degrees of seated straight leg raising bilaterally, and 30 degrees
each of right and left lateral bend in the lumbar spine. Dr. Ghanma opined that appellant had
degenerative disc disease at the L4-5 level with a disc bulge. He noted that appellant reached
maximum medical improvement within three months of his work injury. Dr. Ghanma referred to
Table 16-12 and explained that appellant fell into class 1 based on superficial peroneal and/or
sural cutaneous nerve involvement.6 He opined that this equated to three percent lower
extremity impairment based on the default level of C. Dr. Ghanma explained that, for the grade
modifier for physical examination findings, appellant was a grade modifier one while he had a
grade modifier of zero for clinical studies. Additionally, he found that appellant fell into a grade
modifier of three with respect to functional complaints. Dr. Ghanma also indicated that the
modifier for functional history was obtained from Table 16-6, although appellant did not utilize
canes, crutches or bracing and that the adjustment for clinical studies was obtained from Table
16-8.7 He advised that the net adjustment was (1-1)+(0-1)+(3-1) which equaled 1. Dr. Ghanma
determined that no adjustment was necessary and opined that appellant had a three percent
impairment to the left lower extremity.
2

Appellant immediately returned to light duty and returned to full duty on September 25, 1997.

3

Appellant’s Claim No. xxxxxx291 was doubled with Claim No. xxxxxx297. He has a separate claim under No.
xxxxxx940, which was accepted for left shoulder strain, left rotator cuff tear with arthrotomy of the left shoulder.
4

Appellant retired in March 2001.

5

Appellant noted that his right leg was bothering him.

6

A.M.A., Guides 534-36.

7

Id. at 516, 519.

2

In an April 19, 2010 report, OWCP’s medical adviser reviewed Dr. Ghanma’s report. He
concurred with Dr. Ghanma’s findings and noted that appellant reached maximum medical
improvement on January 1, 1998. OWCP’s medical adviser referenced tables in the A.M.A.,
Guides and opined that appellant had no more than three percent impairment of the left lower
leg.
In a May 27, 2010 decision, OWCP denied appellant’s claim for an increased schedule
award. It noted the previous award of six percent to the left lower extremity and found that the
current evidence only supported three percent impairment.
LEGAL PRECEDENT
The schedule award provision of the Act, and its implementing federal regulations,8 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.10
For decisions issued after May 1, 2009, the sixth edition will be used.11
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.14

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

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

11

FECA Bulletin No. 09-03 (issued March 15, 2009).

12

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

13

A.M.A., Guides 521.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

ANALYSIS
OWCP accepted appellant’s claim for acute lumbosacral strain and herniated disc bulge
at L4-5 with radiculopathy. On July 31, 2008 it granted him a schedule award for six percent
impairment of the left leg. When appellant claimed an increased schedule award, the Office
referred him to Dr. Ghanma.
In a March 22, 2010 report, Dr. Ghanma, the second opinion physician, noted appellant’s
history, findings on examination and rated permanent impairment. The sixth edition of the
A.M.A., Guides provides that lower extremity impairments be classified by diagnosis which is
then adjusted by grade modifiers according to the formula noted above.15 Dr. Ghanma referred
to Table 16-12 of the sixth edition of the A.M.A., Guides, Peripheral Nerve Impairment/Lower
Extremity Impairments, which provides that lower extremity impairments can be classified from
class 0 to class 4, with class 1 defined as mild problem.16 He found a class 1 based on superficial
peroneal and/or sural cutaneous nerve involvement. Dr. Ghanma advised that it equated to a
three percent lower extremity based on the default grade of C. He then applied the grade
modifiers for physical examination findings of one and the grade modifier of three for functional
complaints described in Table 16-6 through Table 16-8 and applied the net adjustment formula.17
Dr. Ghanma advised that this would equate to a net adjustment of one, and therefore no
adjustment was necessary. However, the Board notes that it appears that a net adjustment of one
would result in moving from the default grade C, three percent impairment, to grade D, four
percent impairment of the left lower extremity.18 Additionally, Dr. Ghanma also did not explain
why he found a grade modifier for functional history to be three, where the modifier for physical
examination was one and clinical studies were zero.19 The Board notes, however, that this is
harmless error as Dr. Ghanma’s report, even when viewed most favorably to appellant, does not
support more than four percent impairment of the left leg which is less than the amount that he
was previously awarded.
The Office medical adviser, in his April 19, 2010 report, utilized Dr. Ghanma’s findings,
referenced the A.M.A., Guides and also opined that appellant had three percent impairment of
the left lower extremity. His report provides no basis under the A.M.A., Guides on which to
attribute any greater left leg impairment than that for which appellant previously received a
schedule award.
Consequently, the Board finds that the medical evidence does not support that appellant
has more than six percent impairment of his left lower extremity.

15

Supra note 13.

16

Id. at 534.

17

See id. at 516-21.

18

See id. at 534, Table 16-12 (grid for sensory impairment of superficial peroneal and sural nerves).

19

The A.M.A., Guides 516, provides that, if the grade for functional history differs by two or more grades from
that defined by physical examination or clinical studies, the functional history should be assumed to be unreliable.

4

On appeal, appellant noted that he was requesting an award for his right lower extremity.
As OWCP has not issued a final decision with respect to the right lower extremity, the Board
does not have jurisdiction over the matter.20
CONCLUSION
The Board finds that appellant does not have more than a six percent impairment of his
left lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 27, 2010 is affirmed.
Issued: July 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

See 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD OFFICE OF CIVILIAN
PERSONNEL, U.S. COAST GUARD YARD,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 16-0231
Issued: March 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 19, 2015 appellant filed a timely appeal from a September 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a ratable
hearing loss for schedule award purposes; and (2) whether OWCP properly exercised its
discretion in denying hearing aids.
FACTUAL HISTORY
On January 13, 2014 appellant, then a 54-year-old boat builder, filed an occupational
disease claim (Form CA-2) alleging that he developed hearing loss as a result of employment1

5 U.S.C. § 8101 et seq.

related noise exposure while working at the shipyard and using power tools on the job. He first
became aware of his condition and of its relationship to his employment on February 25, 2013.
The record reflects that appellant began working for the employing establishment in
1968. He worked as a boat builder from April 22, 1972 to the present. Appellant was exposed to
shipyard noise from sealing, sanding, grinding, iron workings, and water blasting. He utilized
earplugs and was exposed to loud noise for up to five hours per day. Appellant had no prior
hearing problems and did not participate in any hobbies that involved exposure to loud noise.
An audiogram was completed by the employing establishment on February 25, 2013
which revealed the following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 5,
10, 10, and 30 for the right ear and 15, 15, 10, and 35 for the left ear.
OWCP referred appellant to Dr. Carol L. St. George, a Board-certified otolaryngologist,
for a second opinion evaluation on September 3, 2014. It prepared a statement of accepted facts
addressing appellant’s federal work duties as a boat builder/painter and the types of employmentrelated noise exposures. An audiogram was completed on September 3, 2014 which revealed the
following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 10, 25, 20, and 35 for the right ear and
20, 20, 15, and 35 for the left ear. Dr. St. George noted that the audiogram showed bilateral high
frequency sensorineural hearing loss. She opined that appellant’s bilateral high frequency
hearing loss was due to his workplace noise exposure and in excess of what would be predicated
for presbycusis as the noise exposure was of sufficient intensity and duration to have caused the
hearing loss in question. Dr. St. George further explained that appellant complained of difficulty
understanding speech clearly. She opined that appellant’s high frequency sensorineural hearing
loss was causing him to have abnormal perception of words. Dr. St. George recommended the
use of hearing aids which would amplify higher frequencies. In accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment2 (A.M.A., Guides), her calculation of monaural and binaural impairment revealed no
ratable hearing loss despite appellant’s bilateral high frequency hearing loss.
By decision dated January 5, 2015, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss. It further found that the medical evidence revealed that he would
benefit from hearing aids. OWCP also noted that the case would be forwarded to an OWCP
district medical adviser (DMA) for an assessment of the percentage of permanent employmentrelated hearing loss.
OWCP also received an April 7, 2015 audiogram from Rebecca Book, a doctor of
audiology, which revealed the dB losses at 500, 1,000, 2,000, and 3,000 Hz: of 15, 10, 15, and
55 decibels for the right ear and 5, 10, 5, and 50 decibels for the left ear.
On May 21, 2015 an OWCP DMA reviewed Dr. St. George’s September 3, 2014 otologic
examination and agreed that appellant developed binaural work-related hearing loss. In
accordance with the A.M.A., Guides, the DMA applied the September 3, 2014 audiometric data
to OWCP’s standard for evaluating hearing loss and determined that appellant had zero percent
monaural hearing loss in the left ear, zero percent monaural hearing loss in the right ear, and zero
percent binaural hearing loss.3 The DMA concluded that appellant had no ratable hearing loss
2

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

3

Id. at 252, Table 11-2.

2

and the date of maximum medical improvement (MMI) was noted as September 3, 2014. He
further stated that hearing aids should not be authorized.
By decision dated September 22, 2015, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable. With regard to
hearing aids, it noted that the medical evidence did not establish that appellant required hearing
aids and denied authorization for these additional medical benefits.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 and its implementing regulations 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 A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.5
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 cycles per second, 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.6 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.7
ANALYSIS -- ISSUE 1
Appellant filed a claim for bilateral hearing loss and was referred to Dr. St. George for a
second opinion examination. After reviewing the statement of accepted facts and medical file,
conducting a thorough physical evaluation, and obtaining an audiogram on September 3, 2014,
Dr. St. George diagnosed bilateral high frequency sensorineural hearing loss due to occupational
noise exposure which she found was not ratable. OWCP’s DMA concurred with this finding that
appellant had no ratable hearing loss to warrant a schedule award. OWCP accepted appellant’s
occupational disease claim for bilateral sensorineural hearing loss. By decision dated
September 22, 2015, OWCP denied appellant’s schedule award claim.
4

Supra note 1.

5

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

6

See A.M.A., Guides 250.

7

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).

3

The Board finds that OWCP properly denied appellant’s schedule award claim.
According to the audiometry obtained on September 3, 2014, appellant’s hearing thresholds were
10, 25, 20, and 35 on the right and 20, 20, 15, and 35 on the left. These total 90 and 90 decibels,
respectively, for averages of 22.50 and 22.50 decibels. Because these averages are below the
fence of 25 decibels, appellant is deemed to have no impairment in his ability to hear every day
sounds under every day listening conditions.8 This does not mean that he has no hearing loss. It
means that the extent or degree of loss is not sufficient to show a practical impairment in hearing
according to the A.M.A., Guides.9 The A.M.A., Guides set a threshold for impairment and
appellant’s occupational hearing loss did not cross that threshold. Thus, OWCP’s DMA applied
the proper standards to the September 3, 2014 audiogram. Appellant’s hearing loss was not
ratable. For this reason, the Board finds that OWCP properly denied a schedule award for
appellant’s nonratable hearing loss.10
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances, and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduces the degree, or the period of any disability, or aid in lessening the amount of

8

See L.F., docket No. 10-2115 (issued June 3, 2011).

9

See R.M., Docket No. 15-1747 (issued January 19, 2016); see also J.S., Docket No. 12-0967 (issued
October 12, 2012).
10

The Board notes that a subsequent audiogram was completed on April 7, 2015 which revealed dB losses at 500,
1,000, 2,000, and 3,000 Hz: 15, 10, 15, and 55 for the right ear decibels and 5, 10, 5, and 50 decibels, for the left
ear, these average losses were also below the fence of 25 dBs, thereby reflecting that appellant’s hearing loss was
nonratable. The Board also notes that OWCP has set forth requirements for the type of medical evidence used in
evaluating hearing loss. These include that the employee undergo both audiometric and otologic examination; that
the audiometric testing precede the otologic examination; that the audiometric testing be performed by an
appropriately certified audiologist; that the otologic examination be performed by an otolaryngologist certified or
eligible for certification by the American Academy of Otolaryngology; that the audiometric and otologic
examination be performed by different individuals as a method of evaluating the reliability of the findings; that all
audiological equipment authorized for testing meet the calibration protocol contained in the accreditation manual of
the American Speech and Hearing Association; that the audiometric test results include both bone conduction and
pure-tone air conduction thresholds, speech reception thresholds and monaural discrimination scores; and that the
otolaryngologist’s report must include: date and hour of examination, date and hour of employee’s last exposure to
loud noise, a rationalized medical opinion regarding the relation of the hearing loss to the employment-related noise
exposure and a statement of the reliability of the tests. A certification must accompany each audiological battery
indicating that the instrument calibration and the environment in which the tests were conducted met the
accreditation standards. This April 7, 2015 audiogram did meet these OWCP standards. See Federal (FECA)
Procedure Manual, Part 3 -- Medical, Requirement for Medical Records, Chapter 3.600.8 (September 1994,
October 1990). Vernon Brown, 54 ECAB 376 (2003).

4

any monthly compensation.11 OWCP must therefore exercise discretion in determining whether
the particular service, appliance, or supply is likely to affect the purposes specified in FECA.12
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.13
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision on whether appellant is
entitled to hearing aids.14
The Board has held 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 provided if any causally related hearing loss exists.15 Dr. St. George’s September 3,
2014 report indicated that the noise at appellant’s workplace was sufficient to cause his hearing
loss and recommended hearing aids for high frequencies. By decision dated January 5, 2015,
OWCP accepted appellant’s claim for bilateral sensorineural hearing loss. It further found that
the medical evidence revealed that appellant would benefit from hearing aids. Following the
January 5, 2015 decision, the DMA determined that appellant was not entitled to hearing aids. In
its September 22, 2015 schedule award denial, OWCP found that appellant was not entitled to
hearing aids.
OWCP’s September 22, 2015 decision denying hearing aids provided no findings for
why hearing aids were not authorized. However, OWCP’s previous January 5, 2015 decision
had approved hearing aids. The DMA determined that appellant was not entitled to hearing aids
yet failed to provide any explanation for his disagreement with Dr. St. George. Therefore, the
record is unclear regarding the reason why it declined to authorize hearing aids.16
The Board notes that proceedings under FECA are not adversarial in nature. OWCP
shares in the responsibility to develop the evidence and has an obligation to see that justice is
done.17 Accordingly, the case will be remanded to OWCP for further development on the
question of whether appellant is entitled to hearing aids.18 Following this and any further

11

See Joshua A. Holmes, 42 ECAB 231, 236 (1990).

12

5 U.S.C. § 8103.

13

See F.D., Docket No. 10-1175 (issued January 4, 2011).

14

R.N., Docket No. 13-284 (issued July 3, 2013).

15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter
3.400.3(d)(2) (October 1995); Raymond VanNett, 44 ECAB 480 (1993).
16

J.B., Docket No. 08-1735 (issued January 27, 2009).

17

Lyle Dayberry, 49 ECAB 369, 372 (1998). See also VanNett, supra note 14 at 483 (where OWCP began to
develop appellant’s hearing loss claim but did not complete such development, the case was remanded for further
evidentiary development).
18

G.M., Docket No. 11-1295 (issued January 25, 2012).

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development of the evidence, as is deemed necessary, OWCP shall issue a de novo decision
regarding appellant’s entitlement to hearing aids.19
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss for schedule award
purposes. The Board also finds that the case is not in posture for decision as to whether hearing
aids should be authorized.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside and remanded in part for
further development of the medical evidence.
Issued: March 10, 2016
Washington, DC

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

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

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

19

See P.B., Docket No. 14-837 (issued August 12, 2014); see also J.D., Docket No. 07-720 (issued
June 19, 2007).

6