United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Carmel, CA, Employer
__________________________________________

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

Docket No. 19-0868
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from January 11 and March 1, 2019
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish disability
from work during the period April 24, 2018 through January 10, 2019, causally related to his
accepted September 27, 2017 employment injury; (2) whether OWCP has met its burden of proof
to terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the March 1, 2019 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury; and (3) whether appellant has met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
FACTUAL HISTORY
On September 27, 2017 appellant, then a 60-year-old clerk/lobby director, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he injured his lower back when he slipped
and fell as he walked from a pickup window while in the performance of duty. He stopped work
on September 28, 2017.
On November 27, 2017 OWCP accepted appellant’s claim for contusions of the lower back
and pelvis, initial encounter. It paid him wage-loss compensation on the supplemental rolls from
November 12, 2017 to March 2, 2018 and on the periodic rolls from March 4 to 31, 2018.
On March 28, 2018 appellant returned to a part-time modified position for five hours per
day as a clerk, but later stopped work on April 24, 2018.
OWCP received an April 26, 2018 progress note by Dr. Dale A. Helman, a Board-certified
neurologist, who noted a history of injury that approximately seven months prior, appellant slipped
and fell backwards and severely twisted his lumbar spine at work . Dr. Helman reported findings
on physical examination and provided an impression that it was “very likely there is some sort of
nerve impingement.” He performed an electromyogram/nerve conduction velocity (EMG/NCV)
study on the same date of his examination and reported that it was abnormal due to right L5-S1
radiculopathy.
On May 11, 2018 appellant filed a claim for compensation (Form CA-7) seeking for
disability from work from April 24 through May 4, 2018.
In support of his claim, appellant submitted medical reports dated April 24, 2018 from
Dr. Timothy Wilken, an attending family practitioner. In these reports, Dr. Wilken noted a history
of appellant’s September 27, 2017 employment injury and diagnosed lumbar radiculopathy,
lumbar and cervical strains, contusion of the lumbar region, and low back pain. He advised that
he was unable to work until his next scheduled appointment in four weeks.
OWCP, in a May 21, 2018 development letter, informed appellant that the evidence
submitted was insufficient to establish disability from April 24 to May 4, 2018 and requested that
he submit additional evidence to establish his claim. It afforded him 30 days to submit the
necessary evidence.
OWCP received an additional report dated May 22, 2018 by Dr. Wilken who reiterated
appellant’s history of injury and repeated his prior diagnoses of lumbar radiculopathy, lumbar and
cervical strains, contusion of the lumbar region, and low back pain. Additionally, Dr. Wilken
continued to advise that appellant was unable to work until his next scheduled appointment in four
weeks.
Appellant filed additional CA-7 forms claiming compensation for disability from work
from May 4 to 31, and June 2 to 30, 2018.
2

In support of his claims, appellant submitted a May 22, 2018 duty status report (Form CA17) from Dr. Wilken who provided diagnoses “due to injury” of lumbar and cervical strains.
Dr. Wilken placed appellant off work.
By development letter dated July 9, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish his claims for disability compensation commencing
April 24, 2018, but that he would be referred to a second opinion examination by a Board-certified
specialist.
OWCP thereafter received a July 5, 2018 EMG/NCV study by Dr. Helman, who reported
bilateral C6-7 radiculopathy and bilateral carpal tunnel syndrome.
On July 16, 2018 OWCP referred appellant’s claim, the case record, a statement of
accepted facts (SOAF), and a series of questions to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether he continued to have
residuals and disability causally related to his accepted September 27, 2017 employment injury.
In narrative reports and a Form CA-17 report dated July 17, 2018, Dr. Wilken reiterated
his prior assessments of appellant’s lumbar and cervical conditions and opinion that he was unable
to work. He also provided a diagnosis of herniated lumbar disc with myleopathy. In the Form
CA-17 report, Dr. Wilken again provided diagnoses of cervical and lumbar strains “due to injury.”
Appellant continued to file CA-7 forms claiming compensation for disability from work
from July 28 to August 24, 2018.
In support thereof, appellant submitted reports dated June 19 and August 14, 2018 from
Dr. Wilken, who continued to restate his prior assessments of appellant’s lumbar and cervical
conditions and opinion that he could not work. On an August 14, 2018 Form CA-17 report
Dr. Wilken listed the date of injury as September 27, 2017 and again reiterated his prior diagnosis
of herniated lumbar disc with myelopathy “due to injury.”
In a July 26, 2018 report, Dr. Mark W. Howard, a Board-certified orthopedic surgeon,
noted that appellant presented for consultation regarding lumbar spine problems he had since
September 27, 2017. He discussed his examination findings and reviewed diagnostic test results.
Dr. Howard provided diagnoses of low back pain and bilateral lower extremity radicular pain in
the setting of mod-large right L4-5 disc bulge, L5-S1 disc degeneration, right L4 greater than right
L5 foraminal stenosis, left L5 greater than left L4 foraminal stenosis, L5 -S1 greater than L4-5
spondylolisthesis with demonstrated sagittal plane instability, and right L5-S1 radiculopathy based
on Dr. Helman’s April 26, 2018 EMG/NCV study.
Dr. Swartz, in an August 8, 2018 report, reviewed the SOAF and appellant’s medical
record. He reported his findings on examination and diagnosed lumbar and cervical strains, lumbar
contusion, and lumbar radiculopathy. Dr. Swartz noted that a February 8, 2018 magnetic
resonance imaging (MRI) scan study of the lumbar spine revealed no signal abnormalities of the
lumbar spine or spinal cord/cauda equine, and no paravertebral soft tissue abnormality, marrow
replacing lesion, or marrow edema, which indicated that appellant’s claim of hitting his low back
against a pole when he fell was in question and would be a minor event at most as none of these
signals showed up on the MRI scan study reflecting a contusion of any significance. He indicated
that an examination by Dr. Wilken on October 10, 2017 did not reveal any muscle spasm in the
3

lumbar spine which would basically rule out an injury of any significance whether it was a strain
or contusion. Dr. Swartz further indicated that his examination revealed a normal range of motion
of the lumbar spine, slight tenderness only and without any spasm in the neck and upper or lower
back, and normal neurologic examination of the lower extremities. He opined that the injuries
regarding appellant’s claim had resolved, and no further treatment was required. Dr. Swartz
further opined that he had an aggravation of preexisting lumbar conditions that ceased on the date
of his examination. He concluded that appellant was capable of returning to his position as a
clerk/lobby director which was basically his date-of-injury position. In an accompanying work
capacity evaluation (Form OWCP-5c) of even date, Dr. Swartz advised that appellant could not
perform his usual job without restrictions, but he could work eight hours per day with specific
physical restrictions.
Appellant filed several additional CA-7 forms claiming compensation for intermittent
periods of disability from August 25 to December 14, 2018.
In additional narrative reports and Form CA-17 reports dated June 19, August 14,
September 11, October 9, and November 6, 2018, Dr. Wilken reiterated his prior lumbar and
cervical assessments and opinion that appellant was unable to work. In the October 9 and
November 6, 2018 Form CA-17 reports, he continued to list the date of injury as September 27,
2017, indicate that appellant’s diagnoses of herniated lumbar disc, lumbar strain with
radiculopathy, and cervical strain were “due to injury,” and advise that he was unable to work.
Dr. Howard, in an August 14, 2018 report, reiterated his prior diagnoses of low back pain,
bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy based on Dr. Helman’s April 26, 2018 EMG/NCV
study.
In a November 11, 2018 report, Dr. Scott Prysi, a family practitioner, noted a date of injury
as September 27, 2017. He discussed findings on examination and provided diagnoses of lumbar
radiculopathy, lumbar strain, lumbar region contusion, and low back pain. Dr. Prysi advised that
appellant could perform modified work with restrictions until his next scheduled appointment.
On November 21, 2018 Dr. Victor Li, Board-certified in pain medicine, reported a history
of the September 27, 2017 employment injury. He also reported examination findings and
reviewed diagnostic test results. Dr. Li provided diagnoses of myofascial pain, and spondylosis
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary.
By notice dated December 11, 2018, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits based on Dr. Swartz’s opinion that the accepted
conditions had ceased without residuals and that he was not disabled from work. It afforded him
30 days to submit additional evidence or argument challenging the proposed action.
OWCP subsequently received narrative reports and a Form CA-17 dated December 17,
2018 from Dr. Prysi who restated his prior diagnoses of lumbar radiculopathy, lumbar strain,
lumbar region contusion, and low back pain, and his opinion that appellant could perform modified
work until his next scheduled appointment. In the December 17, 2018 Form CA-17 report,
4

Dr. Prysi listed September 27, 2017 as the date of injury and provided diagnoses of lumbar spine
strain and radiculopathy “due to injury.” He advised that appellant could work with restrictions.
In a letter of even date, Dr. Prysi noted that he had reviewed Dr. Swartz’s August 8, 2018 report3
and disagreed with his findings. He noted that appellant had a baseline pain level of 7 out of 10
and he was unable to sit or stand for more than 30 minutes. Dr. Prysi further noted that, based on
his physical examination, he could not lift more than 10 pounds at work. He maintained that it
was not possible for appellant to return to full-duty work.
OWCP also received a September 27, 2017 lumbar spine x-ray report by Dr. Tracy Chen,
a diagnostic radiologist, who provided impressions of no acute osseous pathology, grade 1
anterolisthesis of L5-S1, degenerative disc disease at L5-S1, and mild multilevel degenerative
arthrosis.
By decision dated January 11, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, finding that Dr. Swartz’s opinion was
entitled to the weight of the medical evidence.
OWCP thereafter received an additional Form CA-17 report dated January 14, 2019 from
Dr. Prysi. Dr. Prysi continued to note September 27, 2017 as the date of injury, provide a diagnosis
of lumbar strain “due to injury,” and opine that appellant could work with restrictions.
On January 6, 2019 appellant filed another Form CA-7 seeking compensation for disability
from December 14, 2018 to January 11, 2019. On the reverse side of the claim form the employing
establishment noted that he did not sign its job offer for modified work. 4
Dr. Prysi, in a January 14, 2019 narrative report, restated appellant’s lumbar assessments
and opinion that he could perform modified work until his next scheduled appointment.
In a January 16, 2019 progress report, Dr. Li diagnosed contusion of the lower back. He
noted that appellant did not work and restated his prior opinion that appellant’s work status was
permanent and stationary.
OWCP, by decision dated March 1, 2019, denied appellant’s claims for compensation for
the period April 24, 2018 through January 10, 2019, finding that the medical evidence of record
was insufficient to establish that the claimed disability was causally related to his accepted
September 27, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
3

The Board notes that it appears that Dr. Prysi inadvertently indicated that the date of Dr. Swartz’s report was dated
November 19, 2018 rather than August 8, 2018 as the only report of record by Dr. Swartz is dated August 8, 2018.
4

On January 18, 2019 the employing establishment offered appellant a modified clerk position based on the medical
documentation from his treating physician. Appellant rejected the job offer contending that it did not meet his
physician’s restrictions.
5

Supra note 1.

5

compensation is claimed is causally related to the employment injury.6 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.7 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.8
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.9 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.10
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.11 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the claimed disability and the accepted employment injury.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury.
In support of his claims for compensation, appellant submitted a series of reports from
Dr. Wilken. In Form CA-17 reports dated May 22 through November 6, 2018, Dr. Wilken noted
diagnoses of herniated lumbar disc, lumbar strain with radiculopathy, and cervical strain “due to
injury” on September 27, 2017. Although he found employment-related disability in these reports,
they are of limited probative value in establishing appellant’s claim for disability during the period
April 24, 2018 through January 10, 2019 as he did not explain why he was disabled during this
time period due to objective medical findings of his accepted conditions. To establish a period of
disability the medical evidence must provide a discussion of how objective medical findings
attributable to the accepted conditions support a finding that appellant could not perform his job
6

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020);
F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
8

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

9

Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

11

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

12

Id

6

duties.13 A medical opinion is of limited value if it is conclusory in nature. 14 In narrative reports
dated April 24 through November 6, 2018, Dr. Wilken reiterated his prior nonaccepted diagnoses
of lumbar radiculopathy, lumbar strain, cervical strain, herniated lumbar disc. He also diagnosed
contusion of the lumbar region and low back pain. Dr. Wilken opined that appellant was totally
disabled from work. However, he did not relate appellant’s disability to the accepted
September 27, 2017 employment injury and the opinion is therefore of diminished probative
value.15 For these reasons, the Board finds that Dr. Wilken’s reports are insufficient to establish
appellant’s disability claim.
Dr. Helman’s April 26, 2018 progress note related a history of the September 27, 2017
employment injury and indicated that it was “very likely there is some sort of nerve impingement”
of the lumbar spine. The Board finds his opinion is speculative and equivocal and therefore,
insufficient to establish her burden of proof. 16
In reports dated April 26 and July 5, 2018, Dr. Helman provided EMG/NCV study results.
The Board has consistently held that diagnostic test studies, standing alone, lack probative value
as they do not address whether the accepted employment injury caused the diagnosed condition.17
For these reasons, the Board finds that the medical evidence from Dr. Helman is insufficient to
establish appellant’s disability claim.
Dr. Howard’s July 26 and August 14, 2018 reports provided diagnoses of low back pain
and bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy. He noted that appellant had lumbar spine problems
since September 27, 2017. Dr. Li, in a report dated November 21, 2018, noted a history of the
September 27, 2017 employment injury and provided diagnoses of myofascial pain, spondylosis,
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary. Neither physician offered an opinion as to whether appellant was disabled from
work due to the accepted employment injury.18 Accordingly, the reports of Dr. Howard and Dr. Li
are of no probative value and are insufficient to establish the claimed period of disability.

13

See M.M., Docket No. 19-0061 (issued November 21, 2019); W.E., Docket No. 17-0451 (issued
November 20, 2017).
14

See R.B., Docket No. 19-1527 (issued July 20, 2020); R.S., Docket No. 19-1774 (issued April 3, 2020).

15

See J.K., Docket No. 19-0488 (issued June 5, 2020); M.M., supra note 13; E.B., Docket No. 17-0875 (issued
December 13, 2018).
16

See G.H., Docket No. 20-0892 (issued July 9, 2021); I.J., 59 ECAB 408 (2008).

17

See T.G., Docket No. 20-0032 (issued November 10, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019).

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

7

Dr. Chen’s September 27, 2017 lumbar spine x-ray report is insufficient to establish
disability as it predates and, therefore, does not address the claimed period of disability. 19
Dr. Swartz, the second opinion physician, in an August 8, 2018 report and Form OWCP5c, opined that appellant’s accepted September 27, 2017 employment-related conditions and
aggravation of preexisting lumbar conditions had resolved and no further treatment was required.
He further opined that appellant was not totally disabled from work and he was capable of returning
to his clerk/lobby director position. Dr. Swartz reasoned that a February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his essentially normal
examination findings, with the exception of slight tenderness, revealed no objective residuals of
the accepted conditions. As Dr. Swartz reviewed the medical record and supported his conclusion
with medical rationale, the Board finds that his report represents the weight of th e evidence
regarding appellant’s claims for total disability.20
Dr. Prysi reviewed Dr. Swartz’s August 8, 2018 report, and in a December 17, 2018 letter,
disagreed with his conclusion that appellant could return to full-duty work because his pain level
and inability to sit or stand for more than 30 minutes and lift more than 10 pounds at work
prevented him from returning to work. His November 11 and December 17, 2018 narrative reports
provided diagnoses of lumbar radiculopathy, lumbar strain, lumbar region contusion, and low back
pain. Dr. Prysi also provided appellant’s work restrictions but did not opine that he was ever totally
disabled from work for the claimed period due to his September 27, 2017 employment injury.21
His remaining December 17, 2018 Form CA-17 report reiterated his diagnoses of lumbar spine
strain and lumbar radiculopathy and found that the diagnosed conditions were due to the
September 27, 2017 employment injury. Dr. Prysi did not, however, provide an opinion or specify
that appellant’s ability to perform modified-duty work was due to his September 27, 2017
employment injury.22 For these reasons, his reports are insufficient to overcome the weight
accorded to Dr. Swartz’s second opinion report or to create a conflict in the medical opinion
evidence.23
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period April 24, 2018 through January 10, 2019 causally related to his accepted
September 27, 2017 employment injury, the Board finds that appellant has not met his burden of
proof.

19

See M.L., Docket Nos. 18-1058 and 18-1224 (issued November 21, 2019); D.J., Docket No. 18-0200 (issued
August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).
20
21

See M.L., id.
Supra note 18.

22

See M.M., Docket No. 18-0817 (issued May 17, 2019); see also supra note 18.

23

See id.

8

LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.24 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 25 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background. 26
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 27 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 11, 2019, as he no longer had disability or
residuals causally related to his accepted September 27, 2017 employment injury.
As previously discussed, Dr. Swartz, in his comprehensive August 8, 2018 second opinion
report, explained that there were no objective findings based on the February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his own essentially
normal examination findings which supported ongoing residuals or disability due to appellant’s
accepted September 27, 2017 employment injury. He opined that appellant could return to his
clerk/lobby director position and he did not require further medical treatment.
Subsequent to Dr. Swartz’s evaluation, appellant was evaluated by Dr. Wilken on
September 11, 2018, Dr. Howard on August 14, 2018, Dr. Li on November 21, 2018, and Dr. Prysi
on November 11 and December 17, 2018. As previously discussed, none of these physicians
provided a well-reasoned explanation as to why appellant continued to have residuals or disability
for work due to the September 27, 2017 employment injury.
Appellant submitted Dr. Chen’s September 27, 2017 lumbar spine x-ray report and
Dr. Helman’s April 26, 2018 EMG/NCV study report. The Board has held, however, that

24

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
25

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
26

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

27

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

28

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

9

diagnostic studies, standing alone, lack probative value on the issue of causal relationship as they
do not address whether the implicated employment factors caused the diagnosed conditions. 29
The Board finds Dr. Swartz’s well-rationalized opinion to be probative evidence and
reliable and sufficient to justify OWCP’s termination of wage-loss compensation and medical
benefits, effective January 11, 2019.30 The medical evidence from appellant’s physicians is
insufficient to overcome the weight accorded to Dr. Swartz’s second opinion or to create a
conflict.31 OWCP, therefore, has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury. 32 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.33
ANALYSIS -- ISSUE 3
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
Subsequent to the termination of his wage-loss compensation and medical benefits,
appellant submitted reports dated January 14, 2019 from Dr. Prysi. In a January 14, 2019 Form
CA-17 report, Dr. Prysi diagnosed lumbar strain due to the September 27, 2017 employment injury
and advised that appellant could work with restrictions. In a narrative report of even date, he
restated his prior diagnoses of lumbar radiculopathy, strain, and contusion, and low back pain.
Dr. Prysi also reiterated his prior opinion that appellant could perform modified work. However,
he failed to explain with rationale why the work restrictions were causally related to the
September 27, 2017 employment injury.34 Consequently, Dr. Prysi’s reports are of diminished
probative value and insufficient to establish continuing employment-related residuals or disability.
In his January 16, 2019 progress report, Dr. Li diagnosed lower back contusion. He
indicated that appellant did not work and again opined that appellant’s work status was permanent
29

See J.H., Docket No. 17-1916 (issued January 9, 2019); T.H., Docket No. 17-0025 (issued July 6, 2017).

30

V.D., Docket No. 19-0979 (issued February 5, 2020); T.W., Docket No. 18-1573 (issued July 19, 2019); M.C.,
Docket No. 18-1199 (issued April 5, 2019); see also A.C., Docket No. 16-1670 (issued April 6, 2018).
31

See M.M., supra note 13.

32

See J.N., Docket No. 20-1030 (issued November 20, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
L.C., Docket No. 18-1759 (issued June 26, 2019).
33

Id.

34

See D.Y., Docket No. 20-0112 (June 25, 2020).

10

and stationary. Dr. Li did not, however, provide a rationalized opinion as to whether appellant’s
disability was causally related to the accepted employment injury. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains a medical
opinion which is unsupported by medical rationale. 35
Appellant has not submitted rationalized medical evidence establishing continuing
employment-related disability or residuals on or after January 11, 2019 due to the accepted
September 27, 2017 employment injury. As such, the Board finds that he has not met his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury. The Board further finds that OWCP has met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury. The Board also finds that appellant has not met his burden of proof to establish
continuing employment-related disability or residuals on or after January 11, 2019 due to his
accepted employment injury.

35

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

11

ORDER
IT IS HEREBY ORDERED THAT the January 11 and March 1, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROBLEY REX VA MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0602
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On March 9, 2021 appellant, through counsel, filed a timely appeal from a February 17,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On October 29, 2019 appellant, then a 51-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2019 she sustained an injury to the left side
of her hip and lower back when she fell on a wet floor after exiting an elevator to walk to her
assigned clinic while in the performance of duty. She stopped work on February 1, 2019 and
returned to work on February 12, 2019. The employing establishment contended that appellant
was not injured in the performance of duty as she was en route to her workplace location, but had
not yet reported for duty.
In a development letter dated November 6, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of appellant’s claimed injury. It afforded both parties 30 days to respond.
OWCP subsequently received an emergency department report dated January 30, 2019,
wherein a physician assistant diagnosed right knee contusion with possible right knee strain and
right quadriceps strain.
A magnetic resonance imaging (MRI) scan of the left hip obtained on September 4, 2019
demonstrated no internal derangement of the hips, avascular necrosis, or fracture; bilateral gluteal
tendon pathology, worse on the left, where there is gluteus minimus tear/detachment and mo derate
peritendinous inflammation with adjacent peritrochanteric fluid; and minimal inferior sacroiliac
joint subarticular marrow edema without effusion or erosion, likely arthritic. An MRI scan of the
lumbar spine obtained on the same date demonstrated multilevel degenerative disc disease and
facet arthropathy with no significant change from a previous scan obtained on May 28, 2019. An
MRI scan of the pelvis obtained on October 8, 2019 demonstrated: mild left and minimal right
anterior inferior sacroiliac joint subarticular marrow edema, predominating on the sacral side
anteriorly on the left with minimal anterior spurring; intact subchondral bone plats; no evidence of
definitive erosive arthropathy; no effusion or periarticular inflammation; suspected m inimal
subarticular sclerosis; possible osteoarthrosis with stress-related marrow change favored over a
primary inflammatory or crystal arthritis; no change in end plate marrow edema at L4 -5 and
bilateral L4-5 facet arthrosis with a moderate inflammatory component; and no change in the
pelvis and hips compared to an MRI scan obtained in September 2019.
In an October 10, 2019 report, Dr. Gary Reasor, Board-certified in anesthesiology and pain
medicine, examined appellant for complaints of low back pain, beginning seven months prior.
Appellant also told Dr. Reasor that the pain was a result of an incident at work on January 30, 2019
when she slipped and fell on her left hip due to water on the floor, and that the pain became much
worse in March and April. Dr. Reasor noted past medical history including back pain, sciatica,
degenerative disc disease, and kidney stones. He related appellant’s physical examination findings

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and diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain. In an accompanying note of the same date,
Dr. Reasor recommended work restrictions of no standing for more than 15 minutes and no
repetitive bending or twisting of the waist.
In a letter dated October 25, 2019, Dr. Reasor noted that appellant had been seen on
October 10, 2019 on referral from her rheumatology office for severe back pain. Appellant told
Dr. Reasor that she was injured at work on January 30, 2019 when she entered the employing
establishment and slipped on a wet floor, landing on the left hip. She continued to have significant
back pain after the fall and was markedly increased after she was asked to participate in
cardiopulmonary resuscitation (CPR) training. Dr. Reasor reviewed his physical findings on
examination and MRI scan results. He opined that appellant developed significant low back pain
attributable to injury of her left sacroiliac joint as well as inflammation of the left lower lumbar
facet joints, directly related and caused by her fall at work as the history and mechanism of injury
matched her findings on examination.
In a note dated November 15, 2019, Dr. Reasor recommended work restrictions of no
lifting, bending, standing, or squatting for more than 15 minutes. In a note dated November 20,
2019, he recommended that appellant be excused from work from November 11 through 22, 2019.
On November 27, 2019 the employing establishment controverted appellant’s claim,
contending that a medical condition had not been diagnosed resulting from the claimed injury on
January 30, 2019 and that the medical evidence of record did not establish a causal relationship
between any diagnosed condition and the claimed January 30, 2019 injury.
In a letter dated December 7, 2019, Dr. Reasor diagnosed lumbar spondylosis with pain
derived from the lumbar facet joints. He opined that appellant was injured on January 30, 2019
and that the mechanism of injury was a slip and fall on a wet floor as she entered the workplace.
Dr. Reasor noted that appellant struck the floor on her left hip and has had back and hip pain since
that time. His physical examination revealed tenderness over the lumbar spine and he noted that
further examination of the lumbar facets demonstrated concordance between the facets and her
complaints of pain. Dr. Reasor stated that an MRI scan study demonstrated hypertrophy of the
lumbar facets and opined that without question, the lumbar facets were injured as a result of the
fall. He opined to a high degree of medical certainty that there was a direct cause and effect
relationship between appellant’s fall and her current back and hip pain.
By decision dated December 16, 2019, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the January 30, 2019 employment
incident occurred, as alleged. It noted that she had not provided a clear description of the events
supporting an injury at work on January 30, 2019. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On December 30, 2019 appellant requested reconsideration.
By decision dated February 27, 2020, OWCP reviewed the merits of appellant’s claim and
found that the medical evidence of record was sufficient to establish that the January 30, 2019
incident occurred as alleged; however, the claim remained denied as the medical evidence of

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record was insufficient to establish causal relationship between her diagnosed lumbar spondylosis
and the accepted employment incident.
On July 1, 2020 appellant, through counsel, requested reconsideration. Submitted with the
request was a letter from Dr. Reasor dated June 7, 2020. Dr. Reasor explained that appellant was
referred on October 10, 2019 from an advanced practice registered nurse (APRN) who saw
appellant for widespread osteoarthritis and was asked to evaluate appellant’s complaints of left
back, buttock, and leg pain. Appellant recounted that she fell at work on January 30, 2019 when
she slipped on a wet floor, causing her to fall and land on her left hip. Over the course of the next
two to three months her pain worsened, particularly when she underwent mandatory CPR training.
Dr. Reasor reviewed his physical findings on examination and MRI scan findings. He diagnosed
lumbar spondylosis without myelopathy, lumbosacral intervertebral disc degeneration, and low
back pain. Dr. Reasor described administering the lumbar medial branch nerve blocks bilaterally
at L3, L4, and L5 on November 15, 2019 and January 24, 2020. He noted that to his knowledge,
there were no imaging studies of the lumbar spine or hip antedating the January 30, 2019 fall; but,
opined that taking that into account, it remained his medical opinion to a high degree of certainty
that her fall was the cause of her continued back pain. Dr. Reasor explained that assuming
appellant developed lumbar facet arthropathy before the fall in which she slipped on a wet floor
and landed on her left hip, it would have caused, at a minimum, an aggravation of underlying facet
arthropathy. He further noted that it was unknown if she had an annular tear of the L5 -S1 disc,
but that the fall “could have easily been the cause of the annular tear in an already-desiccated disc.”
Dr. Reasor stated that the fall on the left hip, wherein appellant landed on her left buttock, was
“the most likely cause of the torn or detached left gluteus minimus tendon. The mechanism of
injury, in my opinion, is clear to see.”
In a report dated May 6, 2019, an APRN, Sheena Steele, diagnosed cervical radiculopathy,
thoracic and low back pain. An MRI scan of appellant’s lumbar spine obtained on May 28, 2019
demonstrated a small central annular tear posterior disc margin at L5-S1 that could be a source of
back pain, but with no evidence of nerve root impingement, bilateral L4-5 facet arthropathy, and
mild inflammation/edema surrounding the L4-5 facet joints that may indicate an active process.
In a report dated May 30, 2019, Ms. Steele diagnosed thoracic spine and low back pain,
cervical radiculopathy, and unspecified joint pain.
An MRI scan of appellant’s thoracic spine obtained on June 5, 2019 demonstrated: a mild
chronic compression fracture of T11, healed with mild deformity; normal thoracic cord signal
intensity, no pathologic cord enhancement, no thoracic canal stenosis, and no significant foraminal
impingement; and thoracic degenerative changes.
In a report dated June 7, 2019, Lori Weiss, an APRN, diagnosed thoracic and low back
pain, cervical radiculopathy, and current long-term use of an opiate analgesic. In a report dated
August 15, 2019, she diagnosed thoracic spine, left hip, and low back pain, cervical radiculopathy,
and long-term current use of an opiate analgesic. Appellant told the nurse that while completing
a CPR class recently, she experienced increased pain to her back and reinjured her alread y-chronic
symptoms from earlier in 2019.

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Additional reports received from Dr. Reasor indicated that on November 15, 2019 he
performed a medial branch nerve block at L3, L4, and L5 for treatment of diagnosed lumbar
spondylosis without radiculopathy.
In a report dated December 3, 2019, Dr. Reasor followed up with appellant after her
November 15, 2019 procedure. He opined that her pain was facet-related and due to her fall. On
physical examination, Dr. Reasor observed pain with palpation of the lumbar spine with bilateral
tenderness over the lumbar facets and pain on extension. He diagnosed lumbar spondylosis
without myelopathy or radiculopathy, low back pain, and lumbosacral intervertebral disc
degeneration.
On January 24, 2020 Dr. Reasor performed another medial branch nerve block at L3, L4,
and L5 bilaterally for treatment of diagnosed lumbar spondylosis without radiculopathy. He noted
post-procedure pain reduction of 100 percent.
In a report dated February 14, 2020, Dr. Reasor followed up with appellant after her
January 24, 2020 medial branch nerve block at L3, L4, and L5. He noted post-procedure relief of
eighty percent for several hours. Appellant advised Dr. Reasor that her pain remained at 8 out of
10 at this follow-up examination. On physical examination of the lumbar spine, Dr. Reasor
observed pain with palpation of the midline and bilateral facets and pain on flexion and extension.
He diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain.
In a report dated March 5, 2020, Dr. Reasor examined appellant for low back, buttocks,
and left lower extremity pain with tingling. He noted that the pain began seven months prior and
that it was a result of a work-related incident. Dr. Reasor observed that appellant had an antalgic
gait. On physical examination of the lumbar spine, he observed pain with palpation, marked
tenderness of the left facets, decreased range of motion, and pain on flexion, e xtension, lateral
movement, and rotation. On examination of the thoracic spine, Dr. Reasor observed pain with
palpation, marked tenderness of the left facets, and pain on rotation. He diagnosed thoracic spine
pain, lumbar spondylosis without myelopathy or radiculopathy, lumbosacral intervertebral disc
degeneration, and low back pain.
By decision dated February 17, 2021, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
3

The February 17, 2021 decision was a reissuance of a decision dated September 29, 2020, wherein OWCP
reviewed the merits of appellant’s claim and denied modification of the February 27, 2020 decision. A copy of this
decision was not mailed to appellant’s counsel of record. On October 8, 2020 the employing establishment requested
that a copy of the September 29, 2020 decision be mailed to appellant’s counsel of record, as it had not yet been
annotated as being forwarded to counsel. In a letter dated October 15, 2020, counsel requested an update as to the
request for reconsideration in appellant’s case.
4

Id.

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States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted January 30, 2019 employment incident.
In his October 25, 2019 report, Dr. Reasor opined that appellant developed significant low
back pain attributable to injury of her left sacroiliac joint as well as inflammation of the left lower
lumbar facet joints. He opined that her condition was directly related and caused by her fall at
work, as the history and mechanism of injury matched her findings on examination. In his
December 3, and 7, 2019 reports, Dr. Reasor opined that appellant was injured on January 30,
2019 and that the mechanism of injury was a slip and fall on a wet floor as she entered the
5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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workplace. He opined that without question, the lumbar facets were injured as a result of the fall.
Dr. Reasor further opined to a high degree of medical certainty that there was a direct cause and
effect relationship between appellant’s fall and her current back pain. In the June 7, 2020 report,
he opined that it remained his medical opinion to a high degree of certainty that her fall was the
cause of her continued back pain. Dr. Reasor explained that assuming appellant developed lumbar
facet arthropathy before the fall in which she slipped on a wet floor and landed on her left hip, it
would have caused, at a minimum, an aggravation of underlying facet arthropathy . He further
noted that it was unknown if she had an annular tear of the L5-S1 disc, but that the fall could have
easily caused the tear in an already-desiccated disc. The Board has found that in any case where
a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must
provide a rationalized medical opinion that differentiates between the effects of the work-related
injury or disease and the preexisting condition.11 While Dr. Reasor noted appellant’s past medical
history including back pain, sciatica, and degenerative disc disease. He did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the January 30, 2019
employment incident. These reports were therefore insufficient to establish causal relationship
between the diagnosed lumbar conditions and the accepted January 30, 2019 employment incident.
Regarding appellant’s left hip condition, Dr. Reasor stated that the fall on the left hip,
wherein appellant landed on her left buttock, was “the most likely cause” of her torn or detached
left gluteus minimus tendon. He opined that the mechanism of injury was clear to see. The June 7,
2020 report is insufficient to establish appellant’s claim as Dr. Reasor couched his conclusions
that the fall “could have easily been” the cause of an annular disc tear and that her detached left
gluteus minimus tendon was “most likely” caused by the fall in equivocal terms. The Board has
held that while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty. 12 The Board also notes that
Dr. Reasor did not discuss the apparent inconsistency between his account of appellant’s fall onto
her left side on January 30, 2019 and the emergency department report of January 30, 2019, in
which the fall was described involving her left leg extending to the front falling hard on her right
knee and upper front right thigh. Medical opinions based on an incomplete or inaccurate history
are of diminished probative value.13 Without a discussion of the apparent inconsistency between
his account of appellant’s fall onto the left side and the January 30, 2019 emergency department
report’s account of a fall onto the right knee and right thigh, Dr. Reasor’s opinions are therefore
insufficiently rationalized to establish appellant’s claim.
Appellant submitted additional reports and notes dated October 10, November 15,
November 20, and December 7, 2019; and January 24, February 14, and March 5, 2020 from
Dr. Reasor. These reports and notes did not offer a medical opinion regarding the cause of
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

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appellant’s diagnosed conditions. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 14 Therefore these reports are insufficient to establish appellant’s claim.15
Appellant also submitted a report dated January 30, 2019 from a physician assistant and
reports dated May 6, May 30, June 7, and August 15, 2019 from APR nurses. However, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as def ined under FECA. 16 Consequently, these reports will not suffice
for purposes of establishing entitlement to FECA benefits. 17
The remaining evidence consists of diagnostic reports dated May 28, June 5, September 4,
and October 8, 2019. The Board has held that diagnostic tests, standing alone, lack probative value
on the issue of causal relationship as they do not provide an opinion on the relationship between
the employment incident and a claimant’s diagnosed condition. 18
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
January 30, 2019, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., id.; D.K., id.

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
16

17

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (physician assistants are not considered physicians under
FECA).
18

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, NICETOWN
FINANCE STATION, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 08-214
Issued: June 17, 2008

Case Submitted on the Record

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

JURISDICTION
On October 30, 2007 appellant, through her attorney, filed a timely appeal of a May 29,
2007 merit decision of an Office of Workers’ Compensation Programs’ hearing representative,
denying her claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award
for her left thumb and hip. On appeal, appellant contends that the impartial medical examiner’s
report cannot carry the weight of the medical opinion evidence, because he failed to provide an
accurate factual background regarding her employment-related left thumb injury and any
measurements on physical examination regarding this injury as well as her employment-related
left hip injury. She also contends that the impartial medical examiner failed to refer to the tables
and charts of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001) in finding that she sustained no permanent
impairment.

FACTUAL HISTORY
On February 17, 2000 appellant, then a 40-year-old distribution window clerk, filed a
traumatic injury claim alleging that on February 16, 2000 she broke her left thumb which
required sutures. As she was closing a safe she mistakenly smashed her left thumb inside the
safe. Appellant stopped work on February 18, 2000 and she returned to full-time full-duty work
on February 23, 2000. The Office accepted the claim for left thumb fracture.
On December 2, 2000 appellant filed a claim alleging that she sustained a recurrence of
disability on April 5, 2000 causally related to the February 16, 2000 employment injury. She
indicated that she originally injured her left leg and hip and left thumb on October 11, 1999 and
reinjured them on February 16, 2000. Appellant underwent left hip surgery on April 24, 2000.
By decision dated August 17, 2001, the Office denied her claim on the grounds that the medical
evidence of record failed to establish that she sustained a recurrence of disability on April 5,
2000 due to the February 16, 2000 employment injuries. On September 10, 2001 appellant
requested an oral hearing before an Office hearing representative. By decision dated May 8,
2002, an Office hearing representative set aside the August 17, 2001 decision and remanded the
case to the Office for further development of the medical evidence to determine whether
appellant’s left hip injury and resultant surgery were due to the February 16, 2000 employment
injuries. The hearing representative directed the Office to refer her to an appropriate specialist
for a second opinion medical examination.
By letter dated June 17, 2002, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Richard J. Mandel, a
Board-certified orthopedic surgeon, for a second opinion medical examination. In an August 27,
2002 medical report, Dr. Mandel stated that appellant’s thumb had full range of motion, full
strength and intact neurovascular status. Her hip had no swelling or tenderness and full range of
motion. Appellant had equal leg lengths, intact motors and normal gait. Dr. Mandel stated that
appellant was status post an incomplete intertrochanteric fracture of the left hip and open fracture
of the distal phalanx of the left thumb due to the February 16, 2000 employment incident. He
speculated that the hip injury could have been initiated by appellant’s fall at the employing
establishment on October 1, 1999 but stated that the February 16, 2000 employment incident
caused the need for hip surgery. Dr. Mandel stated that both fractures had healed with no
permanent residuals. Appellant required no further medical treatment and was able to continue
working in a full-duty capacity.1
By letter dated September 3, 2002, the Office accepted appellant’s claim for a left hip
fracture and authorized the April 24, 2000 hip surgery based on Dr. Mandel’s August 27, 2002
report.
On January 22, 2003 appellant filed a claim for a schedule award. She submitted an
October 29, 2002 report of Dr. David Weiss, a Board-certified family practitioner. On physical
examination, Dr. Weiss provided, among other things, range of motion measurements for
appellant’s left hip and thumb, circumferencial measurements for her quadriceps and muscle and
1

Dr. Mandel indicated that, following her April 24, 2000 surgery and physical therapy, appellant returned to
full-duty work on January 3, 2001.

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grip strength of her left hip and hand. He diagnosed status post open fracture to the left thumb at
the distal phalanx, status post disfiguring scar to the left thumb, post-traumatic osteoarthritis to
the left thumb at the interphalangeal joint, status post femoral neck fracture to the left hip and
status post open reduction internal fixation of proximal left femoral fracture. Dr. Weiss opined
that the February 16, 2000 employment injuries caused appellant’s subjective and objective
findings. He determined that she sustained a 30 percent impairment of the left lower extremity
and a 6 percent impairment of the left upper extremity based on the A.M.A., Guides.
On October 1, 2003 Dr. M.F. Quinlan, an Office medical adviser, reviewed appellant’s
medical records. He stated that Dr. Weiss’ impairment ratings of the leg were based primarily on
muscle weakness which was not apparent at the time of Dr. Mandel’s second opinion medical
examination. Similarly, Dr. Quinlan stated that the severe swelling found by Dr. Weiss was not
present at the time of Dr. Mandel’s examination. He recommended an impartial medical
examination due to major discrepancies in the physical findings of Dr. Weiss and Dr. Mandel.
By letter dated June 24, 2004, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. William H. Simon, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict
in the medical opinion evidence. In a July 12, 2004 report, Dr. Simon provided his findings on
physical examination which included range of motion measurements for appellant’s left hip and
fingers. He found that appellant had sustained a healed fracture of the left thumb and
degenerative disc disease of the lumbar spine with left-sided lumbar radiculopathy. Appellant
was status post internal fixation of the left hip for an impacted base neck fracture. Dr. Simon
opined that she did not sustain a hip fracture on February 16, 2000 based on his review of the
case record. He stated that the hip surgery was for an old impacted base neck fracture that she
sustained prior to the February 16, 2000 employment injuries. Dr. Simon opined that appellant
sustained a left thumb fracture which was completely healed and did not result in any restriction
in use. He noted that she was working full time. Dr. Simon concluded that appellant had no
objective residuals of the accepted employment injuries.
By decision dated July 30, 2004, the Office denied appellant’s claim for a schedule
award. It accorded special weight to Dr. Simon’s July 12, 2004 opinion as an impartial medical
specialist in finding that she did not have any permanent impairment of the left thumb and hip
due to the February 16, 2000 employment injuries. In a letter dated August 2, 2004, appellant,
through her attorney, requested an oral hearing before an Office hearing representative.
By decision dated May 8, 2006, an Office hearing representative set aside the July 30,
2004 decision and remanded the case to the Office for further development of the medical
evidence. She found that Dr. Simon’s July 12, 2004 report was insufficient to resolve the
conflict in the medical opinion evidence as he found that appellant’s left hip fracture was not
work related even though it had been accepted as such by the Office. The hearing representative
further found that sufficient clarification could not be obtained from Dr. Simon. She directed the
Office to refer appellant to a new impartial medical specialist to resolve the conflict.
On remand, the Office, by letter dated July 14, 2006, referred appellant, along with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Walter W. Dearolf, a Board-certified orthopedic surgeon, for a second impartial medical

3

examination. In a September 22, 2006 report, Dr. Dearolf reviewed a history of appellant’s
February 16, 2000 employment injuries, medical treatment and social background. On physical
examination of the left upper extremity, he reported full range of motion of the left elbow, wrist,
thumb and hand. Appellant’s grip strength was nearly equal as to the opposite side. She had a
well-healed surgical scar on the left thumb. Appellant’s sensation was intact in the thumb and
tendon function was normal. She had a negative Tinel’s and Phalen’s sign at the wrist. On
examination of her back, Dr. Dearolf reported no tenderness. Appellant’s left hip had full
flexion, abduction, internal and external rotation equal to the opposite side. There was a negative
sitting root and straight leg raising test. Both knees had full motion without effusion and the left
knee had no tenderness. There was no quad weakness, hip flexors, atrophy about the thigh or
calf and toe extensor weakness or sensory disturbance. Abduction and adduction strength were
equal. Reflexes were symmetric and there was a well-healed six-inch scar over the anterolateral
aspect of the hip. There was an area of mild tenderness over the trochanteric bursa and some
mild tenderness in the buttock near the ischium.
Dr. Dearolf opined that appellant sustained a laceration of the left thumb and a fracture of
the left hip as a result of the February 16, 2000 employment incident. He further opined that she
had no residuals of these employment-related injuries and that restrictions were not warranted.
Dr. Dearolf found no evidence of permanent impairment of the left thumb or hip. He concluded
that appellant reached maximum medical improvement long before his examination and that she
did not require further medical treatment.
By decision dated October 19, 2006, the Office found that appellant was not entitled to a
schedule award for the left thumb and hip. It found that Dr. Dearolf’s September 22, 2006
opinion was entitled to special weight accorded an impartial medical specialist. In an
October 25, 2006 letter, appellant, through her attorney, requested an oral hearing before an
Office hearing representative.
By decision dated May 29, 2007, an Office hearing representative affirmed the
October 19, 2006 decision. He found that Dr. Dearolf’s September 22, 2006 opinion that
appellant did not have any permanent impairment of the left thumb and hip was entitled to
special weight accorded an impartial medical specialist.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

4

equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
Section 8123 of the Act 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.6 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7
ANALYSIS
Appellant contends that she is entitled to a schedule award for permanent impairment to
her left thumb and hip. The Office accepted that she sustained a fracture of the left thumb and
hip. The Board notes that a conflict arose in the medical opinion evidence between Dr. Mandel,
an Office referral physician, and Dr. Weiss, an attending physician and as to the extent of
appellant’s impairment. Dr. Mandel opined that appellant’s employment-related fractures had
healed and she had no permanent residuals. Dr. Weiss opined that appellant sustained a
30 percent impairment of the left lower extremity and a 6 percent impairment of the left upper
extremity based on the A.M.A., Guides.
The Office initially referred appellant to Dr. Simon, selected as the impartial medical
specialist. In a July 12, 2004 report, Dr. Simon opined that appellant did not sustain a left hip
fracture due to the February 16, 2000 employment incident. He further opined that her left
thumb fracture was completely healed and did not require any use restrictions. Dr. Simon
concluded that appellant had no objective residuals of the February 16, 2000 employment
injuries. In a May 8, 2006 decision, an Office hearing representative found that Dr. Simon’s
July 12, 2004 report was not entitled to special weight accorded an impartial medical specialist
as he did not opine that appellant sustained an employment-related left hip fracture, which had
been accepted by the Office.
On remand, the Office referred appellant to Dr. Dearolf for a second impartial medical
examination. In a September 22, 2006 report, Dr. Dearolf reviewed a history of her February 16,
2000 employment injury, medical treatment and social background. He reported full range of
motion of the left elbow, wrist, thumb and hand on physical examination. Dr. Dearolf stated that
appellant’s grip strength was nearly equal as to the opposite side. He noted a well-healed
surgical scar on the left thumb. Dr. Dearolf stated that appellant’s sensation was intact in the
thumb and tendon function was normal. Appellant had a negative Tinel’s and Phalen’s sign at
5

Supra note 3.

6

5 U.S.C. § 8123.

7

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

the wrist. Dr. Dearolf reported no tenderness of the back. He also reported that the left hip had
full flexion, abduction, internal and external rotation equal to the opposite side. There was a
negative sitting root and straight leg raising test. Dr. Dearolf found that both knees had full
motion without effusion and the left knee had no tenderness. He also found that there was no
quad weakness, hip flexors, atrophy about the thigh or calf, toe extensor weakness or sensory
disturbance. Abduction and adduction strength were equal. Dr. Dearolf reported symmetric
reflexes and a well-healed six inch scar over the anterolateral aspect of the hip. There was an
area of mild tenderness over the trochanteric bursa and some mild tenderness in the buttock near
the ischium.
Dr. Dearolf opined that appellant sustained a laceration of the left thumb and a fracture of
the left hip as a result of the February 16, 2000 employment incident. He further opined that she
had no residuals of the employment-related injuries and that restrictions were not warranted.
Dr. Dearolf found no evidence of permanent impairment of the left thumb or left hip and no
objective evidence of employment-related impairment. He stated that appellant reached
maximum medical improvement long before his examination. Dr. Dearolf concluded that she
did not require further medical treatment.
The Board finds that Dr. Dearolf provided detailed findings on examination in his
September 22, 2006 report. Although he stated that appellant sustained a laceration of the left
thumb and not a fracture which was the condition accepted by the Office, he opined that the
former condition was related to the February 16, 2000 employment incident and explained there
were no objective residuals with regard to the thumb. Dr. Dearolf also found no objective
residuals of appellant’s employment-related left hip fracture. Therefore, there was no objective
basis for an impairment rating for either the left thumb or hip under the A.M.A., Guides. For
these reasons, Dr. Dearolf’s report constitutes the special weight of the medical opinion evidence
afforded an impartial medical specialist.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award
for her left thumb and hip.

6

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
TENNESSEE VALLEY AUTHORITY,
)
NUCLEAR POWER, Soddy Daisy, TN, Employer )
__________________________________________ )
G.E., Appellant

Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-768
Issued: July 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 21, 2014 appellant, through his attorney, filed a timely appeal from the
January 16, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim as untimely filed. 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’s occupational disease claim is barred by the applicable
time-limitation provisions of FECA.
FACTUAL HISTORY
On February 19, 2013 appellant, then a 66-year-old boilermaker/welder, filed an
occupational disease claim alleging that he sustained hearing loss due to noise exposure at work.
1

5 U.S.C. § 8101 et seq.

He initially became aware of his condition on January 1, 2003 and attributed it to his federal
employment duties on January 28, 2013.
Appellant explained that, on that day, his
otolaryngologist informed him that his hearing loss was employment related. He was last
exposed to the conditions alleged to have caused his hearing loss on June 20, 2003, the date that
he retired.
In a January 28, 2013 statement, appellant noted that he was just advised by his physician
for the first time that he had an occupational hearing loss related to his employment at the
employing establishment.
By letters dated March 11, 2013, OWCP requested that appellant and the employing
establishment submit additional factual and medical information, including evidence that he
timely provided notice of his alleged injury.
On March 18, 2013 appellant responded by describing his history of noise exposure while
working for the employing establishment as a laborer from 1970 to 1975 and as a boilermaker
from 1975 to May 10, 1990. He noted daily exposure to loud noise during his employment.
Appellant reiterated that he first related his hearing loss to his work duties on January 28, 2013.
He stated that he had an automobile accident at age seven which caused complete right ear
deafness.
In an accompanying January 9, 2013 report, Dr. William A. Logan, a Board-certified
otolaryngologist, noted appellant’s history which included complete deafness in his right ear
since a motor vehicle accident at age seven. He advised that appellant related that his left ear
hearing had progressively worsened over the years. Dr. Logan indicated that appellant’s work
history included noise exposure due to having worked as a boilermaker for a number of years.
He determined that appellant had no otorrhea, no otalgia and no previous otologic surgery.
Dr. Logan indicated that appellant noted that he had “trouble understanding people when they
talk especially in background noise.” He examined appellant and found some squamous debris
in the right ear.
Dr. Logan indicated that the tympanomembrane was intact with
tympanosclerosis and no effusion. Regarding the left ear, he advised no discharge and found the
tympanomembrane intact with tympanosclerosis and no effusion. Dr. Logan noted that the
audiogram showed a dead ear on the right and a borderline sloping to moderate sensorineural
loss on the left, Type A tympanograms on the left, flat tympanograms on the right. Appellant
had a discrimination score of 96 percent on the left. Dr. Logan opined that appellant had
sensorineural hearing loss in the left ear which was clinically most consistent with occupational
noise exposure. He advised that appellant avoid unnecessary exposure to loud noise, use ear
protection when unavoidably around loud noise and consider amplification for his left ear if he
desired. An audiogram from January 9, 2013 was also received.
OWCP received noise exposure data from the employing establishment covering the
period from 1976 to 1984, appellant’s work history as a boilermaker and welder, applications for
employment with the employing establishment. The employing establishment audiograms
included a July 16, 1973 audiogram which showed the following decibel losses at 500, 1,000,
2,000 and 3,000 Hertz (Hz) for the left ear: -5, 0, 0 and 0. A September 8, 1981 audiogram
revealed the following decibel losses at the same frequencies in the left ear: 15, 10, 10 and 20;

2

while a January 27, 1987 employer audiogram showed left ear decibel losses of 25, 15, 15 and
50.
A conference call was held on April 12, 2013. OWCP determined that appellant worked
for the employing establishment from September 18, 1985 through June 20, 1994. Appellant
worked as a contractor for the employing establishment from June 20, 1994 to June 20, 2003.2
Thereafter, OWCP received an April 10, 2013 letter from Dr. Whitney R. Mauldin, an
employing establishment audiologist, who controverted the claim. Dr. Mauldin noted the history
of appellant’s intermittent federal work from December 22, 1970 to May 10, 1990, along with
intermittent periods of nonfederal employment. She argued that appellant was last exposed to
factors as a federal employee on May 10, 1990. Dr. Mauldin stated that appellant worked in the
private sector as boilermaker/welder in 2003 and he was not a federal employee for the previous
23 years. She also argued that appellant received hearing examinations during his federal
employment and that the changes in hearing did not exceed that which was expected for his age
during his employment. Dr. Mauldin noted that when appellant was rehired in 1987 after two
years in the private sector, his “rehire exam[ination] indicates a significant change in his hearing
thresholds in both ears.” She argued that in order for a work-related hearing loss injury to occur,
appellant must experience a threshold shift of 10 decibels or greater at 2,000, 3,000 and 4,000
frequencies. Dr. Mauldin noted that there was no evidence of a permanent threshold shift
documented during his federal employment. She challenged the timeliness of the claim and
indicated that the employing establishment could not have had any immediate, actual knowledge
of a work-related injury or illness. Dr. Mauldin also noted that Dr. Logan did not distinguish
between appellant’s federal employment 23 years ago and his civilian employment since 1990.
By decision dated April 29, 2013, OWCP denied appellant’s claim on the grounds that he
was not a federal employee at the time of the injury and had not been since June 20, 1994.
In a letter dated April 29, 2013, Aldora Bell, a workers’ compensation claims
representative with the employing establishment, indicated that appellant began his employment
with the employing establishment on December 22, 1970. She noted that he worked
intermittently until April 3, 1989 and was rehired on March 1, 1990. Ms. Bell advised that
appellant worked until May 10, 1990 and was hired as a contractor on June 20, 1994, working
intermittently until June 20, 2003. She provided copies of his audiograms and hearing records.
On May 8, 2013 appellant, through his attorney, requested a telephonic hearing, which
was held on October 9, 2013. During the hearing, appellant described his employment history.
He noted that he occasionally engaged in hunting and shooting with a rifle and used earmuffs.
Appellant confirmed that the first time he was aware that his hearing loss was work related was
in 2013. His attorney also noted that the audiograms from the employing establishment revealed
2

In a letter dated April 23, 2013, appellant’s representative noted that he had received the conference
memorandum and advised that there were errors with regard to the dates of employment. He noted that appellant
began working for the employing establishment in 1970 as a laborer until 1975; as a boilermaker from 1975 until
1981 and the following periods: May 17 to 28, 1982; September 11, 1985 to October 4, 1985; March 5 to 6, 1990;
March 10 to May 10, 1990.

3

a progression of hearing loss during appellant’s work for the employing establishment noting
that he had no left ear hearing loss when he began working for the employing establishment but
had increased hearing loss as shown in the September 8, 1981 and January 21, 1987 audiograms.
Counsel argued that the employing establishment had notice of the loss based on the audiogram
in 1987.
In a letter dated October 22, 2013, appellant’s attorney enclosed a new report from
Dr. Logan. In a report dated September 18, 2013, Dr. Logan noted that he had reviewed his prior
report and audiogram. He opined that the hearing loss in appellant’s left ear was “to a reasonable
degree of medical certainty primarily due to his long history of occupational noise exposure.”
Dr. Logan noted that appellant engaged in recreational shooting and explained that he suspected
the hearing loss contributed from this was minimal in comparison to the long history of
occupational noise exposure. He determined that appellant had a 28.1 percent hearing loss in the
left ear.
In a letter dated November 27, 2013, Robin Daugherty, an employing establishment
workers’ compensation manager, controverted the claim. She noted that appellant worked for
the employing establishment intermittently from December 22, 1970 to May 10, 1990.
Ms. Daugherty argued that his hearing loss was not employment related.
In a letter dated December 12, 2013, appellant’s attorney noted that the employing
establishment was attempting to suggest that appellant worked for the employing establishment
for a short time. However, he indicated that appellant worked directly for the employing
establishment for at least 13 years and was exposed to loud noises on a regular basis. Counsel
also clarified that, while appellant went hunting, it was on an occasional basis with earmuffs.
Furthermore, he argued that appellant was not required to file his claim for hearing loss until he
learned from his physician, Dr. Logan, that the hearing loss was related to his employment.
Counsel argued that appellant’s claim was timely filed when he notified the employing
establishment of his hearing loss upon learning that it was work related from his physician. He
argued that appellant’s claim was timely filed. Counsel also noted that Ms. Mauldin was an
audiologist and not a physician.
By decision dated January 16, 2014, an OWCP hearing representative affirmed as
modified the April 29, 2013 decision. She found that, while appellant participated in a hearing
conservation program, he did not show that the employing establishment had knowledge of his
claimed injury prior to his June 8, 1983 retirement.3 The hearing representative further
determined that he did not file his claim within three years from 1994, when he left federal
service, and that he reasonably should have known that his hearing loss was due to workplace
noise exposure at this time.

3

The hearing representative also indicated that appellant’s last work for the employing establishment occurred in
May 1990.

4

LEGAL PRECEDENT
Section 8122(a) of FECA4 provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.5 Section 8122(b) provides
that, in latent disability cases, the time limitation does not begin to run until the claimant is
aware, or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.6 The Board has held that,
if an employee continues to be exposed to injurious working conditions after such awareness, the
time limitation begins to run on the last date of this exposure.7 Even if a claim is not timely filed
within the three-year period of limitation, it would still be regarded as timely under section
8122(a)(1) if the immediate superior had actual knowledge of his alleged employment-related
injury within 30 days or written notice of the injury was provided within 30 days pursuant to
section 8119.8 The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death.9 The Board has indicated that an employee need only be
aware of a possible relationship between his condition and his employment to commence the
running of the applicable statute of limitations.10 The Board has also held that a program of
annual audiometric examinations conducted by an employing establishment may constructively
establish actual knowledge of a hearing loss such as to put the immediate supervisor on notice of
an on-the-job injury.11
In interpreting section 8122(a)(1) of FECA, OWCP procedures provide that, if the
employing establishment gives regular physical examinations which might have detected signs
of illness, such as hearing tests, it should be asked whether the results of such tests were positive
for illness and whether the employee was notified of the results.12
ANALYSIS
The Board finds that appellant’s claim was timely filed. As noted above, if an employee
continues to be exposed to injurious working conditions, the time limitation begins to run on the

4

5 U.S.C. § 8101 et seq.

5

Id. at § 8122(a).

6

Id. at § 8122(b).

7

See Linda J. Reeves, 48 ECAB 373 (1997).

8

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

9

Willis E. Bailey, 49 ECAB 509 (1998).

10

Edward C. Horner, 43 ECAB 834, 840 (1992).

11

See J.B., Docket No. 10-2025 (issued June 17, 2011); Jose Salaz, 41 ECAB 743 (1990).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3)(c) and 6(c) (March 1993);
see also James A. Sheppard, 55 ECAB 515 (2004).

5

date of last exposure.13 Appellant ceased to be exposed to work-related noise when he left
federal service on June 20, 1994. Therefore, the time limitation provisions began to run on that
date. As appellant did not file a claim for hearing loss until February 19, 2013, his claim was
filed outside the three-year time limitation period.14 However, his claim would still be regarded
as timely under section 8122(a)(1) of FECA if his immediate supervisor had actual knowledge of
the injury within 30 days of his last exposure to the implicated employment factors. To have
actual knowledge, the supervisor must be aware that appellant attributed his hearing loss to an
injury sustained in the performance of duty or to some other factor of employment.15
On appeal appellant’s attorney contends that his supervisor had constructive or actual
knowledge of his hearing as he was part of a hearing conservation program. The Board has held
that a program of annual audiometric examinations conducted by an employing establishment in
conjunction with employee testing programs is sufficient to constructively establish actual
knowledge of a hearing loss such as to put the immediate supervisor on notice of an on-the-job
injury.16 OWCP’s procedure manual, interpreting section 8122(a)(1) of FECA states:
“If an agency, in connection with a recognized environmental hazard, has an
employee testing program and a test shows the employee to have positive findings
this should be accepted as constituting actual knowledge. For example, an agency
where employees may be exposed to hazardous noise levels may give annual
hearing tests for exposed employees. A hearing loss identified on such a test
would constitute actual knowledge on the part of the agency of a possible work
injury.”17
The record supports that appellant participated in an annual hearing conservation
program as early as 1976 and that the results indicated various levels of hearing loss. Numerous
audiograms were submitted which document the testing. The employing establishment
confirmed that appellant worked for it intermittently from December 22, 1970 to May 10, 1990.
Dr. Mauldin, an audiologist, argued that the changes in hearing did not exceed that which was
expected for his age. She also noted that, when appellant was rehired in 1987, after two years in
the private sector, “his rehire exam[ination] indicates a significant change in the thresholds in
both ears.”18 As noted, the audiograms of record performed for the employing establishment
13

See supra note 8.

14

5 U.S.C. § 8122(b).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3)(b) (March 1993).

16

See Joseph J. Sullivan, 37 ECAB 526 (1986); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.3(c) (March 1993).
17

Federal (FECA) Procedure Manual, id. at 2.801.3(a)(3)(c).

18

Dr. Mauldin also argued that appellant had to have a threshold shift of 10 decibels or greater for a work-related
hearing loss to occur and that Dr. Logan did not distinguish between hearing loss from his federal and contractor
employment. However, to the extent that she purports to offer a medical opinion, she is not a physician and her
opinion is of no probative medical value. See 5 U.S.C. § 8101(2) (defines the term physician); M.P., Docket No. 131790 (issued December 17, 2013) (an audiologist is not a physician under FECA and the audiologist’s opinion
regarding the medical cause of a claimant’s hearing loss is of no probative medical value).

6

document a progression of hearing loss. A July 16, 1973 audiogram showed the following
decibel losses at 500, 1,000, 2,000 and 3,000 Hz for the left ear: -5, 0, 0 and 0. A September 8,
1981 employing establishment audiogram revealed the following decibel losses at the same
frequencies in the left ear: 15, 10, 10 and 20; while a January 27, 1987 employing establishment
audiogram showed left ear decibel losses of 25, 15, 15 and 50. The Board finds that this is
sufficient to establish that the employing establishment had notice of the loss based on the
audiogram in 1987.
As noted, OWCP procedures provide that, if the employing establishment gives regular
physical examinations which might have detected signs of illness, such as hearing tests, it should
be asked whether the results of such tests were positive for illness and whether the employee was
notified of the results.19 The Board finds that the evidence of record is sufficient to establish that
the employing establishment had actual knowledge of the hearing loss. While it is not clear how
much of appellant’s hearing loss resulted from his federal employment, there is no provision for
apportionment under FECA.20
The Board also notes that to the extent that appellant was not aware of these results; his
claim would also be timely based on the January 9, 2013 report of Dr. Logan. As noted above,
section 8122(b) provides that, in latent disability cases, the time limitation does not begin to run
until the claimant is aware, or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.21 The record
reflects that, upon reviewing the report of Dr. Logan on January 28, 2013, appellant immediately
filed his claim on February 19, 2013. He filed the claim upon being apprised that his hearing
loss was most consistent with occupational noise exposure. The Board notes that the claim was
filed on February 19, 2013 and was within three years of Dr. Logan’s January 9, 2013 report and
his review on January 28, 2013.
Consequently, appellant’s claim for compensation was timely filed.22 The case will be
remanded to OWCP for further development to determine if he sustained hearing loss causally
related to factors of his federal employment. Following such further development as OWCP
deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim was timely filed.

19

Supra note 12.

20

B.G., Docket No. 14-76 (issued April 16, 2014).

21

5 U.S.C. § 8122(b).

22

See Gerald A. Preston, 57 ECAB 270 (2005); James A. Sheppard, supra note12.

7

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 29, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

8