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

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

Docket No. 17-1783
Issued: January 12, 2018

Case Submitted on the Record

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

JURISDICTION
On August 15, 2017 appellant filed a timely appeal from a March 10, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of the
left upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On February 2, 2016 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim (Form CA-1), alleging that she injured her left shoulder when picking up a package on
January 28, 2016. She began modified duty. On March 7, 2016 Dr. M. Brandon Johnson, an
1

5 U.S.C. § 8101 et seq.

attending Board-certified orthopedic surgeon, advised that appellant was totally disabled from
work. On March 10, 2016 OWCP accepted the claim for left shoulder rotator cuff tear or rupture
and left shoulder stiffness. Appellant thereafter filed a claim for compensation (Form CA-7)
beginning March 14, 2016. OWCP paid her appropriate compensation on the periodic
compensation rolls as of April 12, 2016.
On May 18, 2016 Dr. Johnson performed left shoulder arthroscopy with rotator cuff
repair, subacromial decompression, and labral debridement. Appellant returned to two hours
daily of light-duty work on August 25, 2016, and received appropriate intermittent
compensation. She returned to full-duty work on September 27, 2017.
On October 4, 2016 appellant filed a claim for a schedule award (Form CA-7). In a
November 8, 2016 report, Dr. Johnson indicated that he had last examined her on
September 22, 2016. He advised that appellant had a good surgical result with resolution of the
majority of her pain, but had remaining limitations in active external rotation to 30 degrees and
active forward flexion to 120 degrees. Dr. Johnson opined that, in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),2 this yielded eight percent permanent left upper
extremity impairment.
OWCP forwarded the medical record to its medical adviser for review. In a January 27,
2017 report, Dr. Herbert White, Jr., Board-certified in occupational medicine and an OWCP
medical adviser, noted his review of the record including Dr. Johnson’s reports. He indicated
that appellant had achieved maximum medical improvement on September 22, 2016, the date of
the evaluation Dr. Johnson used for his impairment rating. The medical adviser utilized Table
15-5, Shoulder Regional Grid, of the sixth edition of the A.M.A., Guides, which identifies
diagnosis-based impairments (DBI) of the shoulder. He determined that appellant had a class 1
impairment due to the rotator cuff tear diagnosis. Dr. White assigned grade modifiers of 1 for
functional history and physical examination, and a modifier of 2 for clinical studies. After
applying the net adjustment formula, he concluded that appellant had four percent permanent
impairment of the left upper extremity due to rotator cuff tear. The medical adviser also
provided an impairment evaluation for labral tear, finding a class 1 impairment under Table 15-5.
He again found grade modifiers of 1 for functional history and physical examination, and a
modifier of 2 for clinical studies. After applying the net adjustment formula, Dr. White
concluded that appellant had four percent permanent impairment of the left arm due to labral
tear. He indicated that he could not tell what method Dr. Johnson used in rating her impairment
and, after noting that the A.M.A., Guides direct that, if more than one diagnosis can be used, the
highest impairment rating should be used. Dr. White concluded that, in this case, each diagnosis
yielded four percent permanent impairment of the left upper extremity.
By decision dated March 10, 2017, OWCP granted appellant a schedule award for four
percent permanent impairment of the left upper extremity, to run for 12.48 weeks, from
September 27 to December 23, 2016.

2

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

2

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.3 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.4 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires
the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., Guides issued a 52-page document entitled, Clarifications and
Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment. The document
included various changes to the original text, intended to serve as an erratum/supplement to the
first printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated
into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether appellant has more than four percent permanent
impairment of the left upper extremity, for which she previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion (ROM) methodology when assessing the extent of permanent impairment for schedule

3

See 20 C.F.R. §§ 1.1-1.4.

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
4

5

5 U.S.C.

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

3

award purposes.8 The purpose of the use of uniform standards is to ensure consistent results and
to ensure equal justice under the law to all claimants.9 In T.H., the Board concluded that OWCP
physicians were at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and ROM
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians have been inconsistent in the application of the A.M.A., Guides, the Board found that
OWCP could no longer ensure consistent results and equal justice under the law for all
claimants.10
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the March 10, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.11
CONCLUSION
The Board finds this case not in posture for decision.

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

11

FECA Bulletin No. 17-0006 (issued May 8, 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: January 12, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 16-1809
Issued: March 28, 2017

Case Submitted on the Record

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

JURISDICTION
On September 13, 2016 appellant, through counsel, filed a timely appeal from a June 6,
2016 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 to consider the merits of the 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 established that he has more than six percent
permanent impairment of his left upper extremity, for which he previously received a schedule
award.
On appeal counsel contends that appellant has 10 percent permanent impairment of his
left upper extremity.
FACTUAL HISTORY
On January 28, 2014 appellant, then a 53-year-old automobile technician, filed a
traumatic injury claim (Form CA-1) alleging that on January 9, 2014 he felt something pull or
sprain in his left shoulder while he was attempting to loosen a tight bolt. OWCP accepted
appellant’s claim for sprain of the left shoulder, upper arm, and rotator cuff, other affections of
left shoulder region, and rupture of long head biceps tendon.
On June 18, 2014 Dr. Daniel Rueff, appellant’s treating Board-certified orthopedic
surgeon, performed a left shoulder arthroscopic biceps tendon debridement, left shoulder
arthroscopic labral debridement, and left shoulder arthroscopic subacromial decompression. In a
November 1, 2014 report, he noted that appellant’s physical examination revealed forward
flexion to 150 degrees, external rotation to 50 degrees, and full range of motion (ROM) of
appellant’s elbow, wrist, and hand. Dr. Rueff noted that appellant still had some weakness with
abduction.
On February 6, 2015 appellant filed a claim for a schedule award (Form CA-7).
On March 3, 2015 OWCP referred appellant to Dr. Anbu K. Nadar, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a May 4, 2015 report, Dr. Nadar
diagnosed tear and degenerative changes involving the biceps tendon, and noted that appellant
had surgery with arthroscopic debridement of the biceps tendon and subacromial decompression.
He then applied the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (6th ed. 2009) (hereinafter A.M.A., Guides), to determine appellant’s permanent
impairment. Dr. Nadar applied Table 15-5 of the A.M.A., Guides and noted that, using the
diagnosis-based impairment (DBI) methodology of rating impairment, appellant fell under class
1 which had a mid-range default value of five percent. He noted a grade modifier of 2 for
functional history and a grade modifier of 1 for physical examination which resulted in a
numerical adjustment of +1, and a move from grade C to D, which resulted in a left upper
extremity permanent impairment rating of six percent.3
On June 9, 2014 OWCP referred the case to an OWCP medical adviser. In a June 9,
2015 note, the medical adviser agreed with Dr. Nadar’s calculations and found that appellant was
entitled to a schedule award for six percent permanent impairment of his left upper extremity
based on Table 15-5 of the A.M.A., Guides.

3

A.M.A., Guides 404, Table 15-5.

2

On June 16, 2015 OWCP issued a schedule award for six percent permanent impairment
of appellant’s left upper extremity.
On July 10, 2015 appellant, through counsel, made a timely request for a telephonic
hearing before an OWCP hearing representative.
A hearing was held on March 21, 2016, at which time counsel for appellant argued that
permanent impairment was a medical issue, that the claimant did not have the opportunity to be
examined by a physician of his own choosing before the schedule award was issued, that
appellant had since been examined, and that a report was forthcoming. Counsel asked that the
new report be sent to OWCP’s medical adviser for review. The hearing representative agreed to
hold the record open for 30 days for submission of additional evidence.
In a March 4, 2016 report, Dr. Martin Fritzhand, a Board-certified urologist, noted on
physical examination that appellant had tenderness over the posterior aspect of the left shoulder
and crepitus on both active and passive movement. He noted that appellant’s shoulder pain had
persisted since surgery, that muscle strength was somewhat diminished over the left shoulder
muscle groups, and that there was sensory loss involving the left upper limb. Dr. Fritzhand also
noted that appellant’s ROM was markedly decreased. In order to determine appellant’s
permanent impairment, he noted Table 15-5 of the A.M.A., Guides with regard to sprain/strain.
Dr. Fritzhand further noted that if motion loss was present then appellant’s impairment could
alternatively be assessed using the ROM methodology under section 15.7.4 He noted that an
ROM impairment rating stands alone and is not combined with a DBI rating. Dr. Fritzhand used
Table 15-34 to assess impairment.5 He noted impairment ratings as follows: flexion of three
percent; extension of one percent, abduction of three percent, adduction of one percent, internal
rotation two percent, and external rotation zero percent. Dr. Fritzhand concluded that appellant
therefore sustained 10 percent permanent impairment of his left upper extremity.
OWCP referred appellant’s case to OWCP’s medical adviser to review the medical
evidence and to rate appellant’s permanent impairment. In a March 31, 2016 response, the
medical adviser indicated that based on the A.M.A., Guides, appellant’s claim could be
calculated either on the basis of impingement under Table 15-5 with a default value of three
percent and a maximum of five percent impairment or it could be calculated for labral tear that
was debrided utilizing Table 15-5, which also yielded a default value of three percent and a
maximum of five percent impairment. He opined that Dr. Fritzhand incorrectly utilized the
A.M.A., Guides because he based his calculation on the ROM methodology rather than the DBI
methodology. The medical adviser indicated that this was inconsistent with section 15.2 of the
A.M.A., Guides, which provided that ROM was used primarily as a physical examination
adjustment factor and only to determine actual impairment values in the case where it was not
possible to otherwise define impairments.6 He indicated that in this case it was possible to
determine a DBI rating so utilizing the ROM rating was unnecessary.
4

Id. at 472.

5

Id. at 475, Table 15-34.

6

Id. at 387.

3

After rejecting Dr. Fritzhand’s report, OWCP’s medical adviser applied Table 15-5 for
labral tear class 1, default value of three percent. Using the adjustment grid and grade modifiers,
he found a grade modifier of two for functional history due to pain with normal activity, a
physical examination adjustment of two for moderate decrease in ROM, and a clinical study
adjustment of two, for SLAP tear or other labral lesions. Utilizing the net adjustment formula,
the medical adviser determined that the net adjustment was +2, which moved the value to grade
E and yielded five percent impairment. He concluded that as appellant had already been
awarded six percent permanent impairment for the left upper extremity, he was not entitled to an
additional award.
By decision dated June 6, 2016, the hearing representative affirmed the June 16, 2015
decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.7 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.8 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A.,

7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks of compensation. 5 U.S.C.
§ 8107(c)(1).
9

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a)
(February 2013).

4

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.11
ANALYSIS
The issue is whether appellant has more than six percent permanent impairment of his left
upper extremity, for which he previously received a schedule award. The Board finds this case is
not in posture for decision.
Dr. Fritzhand, appellant’s physician, reported that appellant had 10 percent permanent
impairment of his left upper extremity utilizing the ROM rating protocols. OWCP’s district
medical adviser reviewed Dr. Fritzhand’s report and related that appellant’s permanent
impairment should not be rated based on loss of ROM, but rather based on the DBI method.
Previously, OWCP’s second opinion physician, Dr. Nadar, had also used the DBI method to rate
appellant’s permanent impairment. Both Dr. Nadar and OWCP’s district medical adviser
concluded that appellant had six percent permanent impairment of his left upper extremity.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.12
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.13 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.14
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the June 6, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

Supra note 12.

5

necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2016 is set aside, and the case is remanded for further
action consistent with this decision.
Issued: March 28, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________

C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-227
Issued: May 2, 2007

Case Submitted on the Record

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

JURISDICTION
On June 7, 2006 appellant timely appealed a January 30, 2006 merit decision of the
Office of Workers’ Compensation Programs in which an Office hearing representative affirmed
the denial of her traumatic injury claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an injury in the performance of duty on April 26, 2004.

1

Appellant also appealed an August 12, 2005 merit decision of the Office denying her claim for a recurrence of
disability under claim number 03-20045419. The Board docketed the appeal as No. 06-1445.

FACTUAL HISTORY
On January 28, 2005 appellant, then a 43-year-old clerk, filed a traumatic injury claim
alleging that she injured her back during her work shift on April 25 to 26, 2004 while lifting
heavy trays, reaching, pulling mail down and pushing containers.2 The Office assigned the claim
No. 3-2036690. Appellant stopped work on April 26, 2004. She retired on disability effective
September 29, 2004. The employing establishment controverted the claim on the grounds that
appellant did not provide timely notification of her work injury and she was out on sick leave on
April 26, 2004.
In a March 1, 2005 letter, the Office advised appellant of the factual and medical
evidence needed to establish her claim. This included providing a description of how the injury
occurred as well as providing a detailed, narrative report from appellant’s physician which
included the history of her injury and all prior industrial and nonindustrial injuries to similar
parts of her body, a firm diagnosis of any conditions resulting from this injury, as well as
findings, symptoms and/or test results which support all conditions diagnosed, treatment
provided, prognosis, period and extent of disability and a rationalized narrative report which
explains why the condition diagnosed is believed to have been caused or aggravated by the
claimed injury.
In response, appellant submitted a factual statement describing her duties of lifting heavy
trays, reaching, pulling mail down and pushing containers. She indicated that after her tour
ended she went home and got in bed and was unable to get out of bed the next morning or
evening. Appellant called Dr. Joel H. Jaffe, a general practitioner, and sought treatment for her
back condition. In a March 16, 2005 handwritten medical note from Dr. Jaffe, which is, in part,
illegible, he indicated that she had multiple lumbosacral disc disease, a history of back problems
and magnetic resonance imaging (MRI) scans which showed bulging discs. He appears to state
that appellant was originally injured at the employing establishment and that she was later
transferred to another area which involved a lot of heavy lifting and being on her feet all the
time. Dr. Jaffe stated that the repetitive actions of lifting heavy trays and the fact that appellant
worked a double shift seemed to irritate her back muscles and cause the back pain to stay
constant. He opined that her injury of April 26, 2004 came from her work and caused her lower
and mid-back to become worse and worse over the time.
By decision dated April 27, 2005, the Office denied appellant’s traumatic injury claim. It
found that, while appellant lifts trays and pulls mail as part of her employment, the medical
evidence did not establish that the claimed medical condition resulted from the accepted event(s).
In a letter dated April 28, 2005, appellant requested an oral hearing which was held
December 15, 2005. She submitted progress notes from Dr. Jaffe dated May 20, 2004 through
May 25, 2005 and medical reports dated July 19 and August 16, 2004 and May 26, 2005.
On July 19, 2004 Dr. Jaffe reported that the original injury occurred in November 2001,
when appellant was lifting a tub of mail and pulled her back. He indicated that appellant’s back
2

Under claim number 03-2004519, appellant has an accepted claim for a lumbar strain arising from a
November 13, 2001 injury.

2

has been painful ever since. Dr. Jaffe advised that a May 7, 2004 MRI scan showed a bulging
disc at L4-5 with a mild right greater than left neural foraminal stenosis, disc space narrowing
and desiccation of the disc at the L4-5 level and hemangiomas within the L3 and T12 vertebral
bodies. He indicated that, after the original injury occurred in November 2001, appellant had
some moderate dextroscoliosis at the thoracolumbar junction which contributed to her
discomfort. Dr. Jaffe opined that appellant was totally disabled from any work at the employing
establishment due to her pain and that such disability occurred because of her original work
injury. He explained that her condition had deteriorated and she was not able to do any quality
work on a sustained time basis because of the recurrent chronic pain. Dr. Jaffe further stated that
her back pain would worsen as her condition deteriorates. He also opined that appellant’s
underlying anxiety and stress syndrome and depression occurred secondary to the job injury.
On August 16, 2004 Dr. Jaffe reiterated that the original injury occurred in
November 2001, while appellant lifted a tub of mail and pulled her back. He indicated that
appellant’s current examination of her lower back showed that her spine was restricted 50
percent or more in all ranges of motion for flexion, extension and side bending and the tests were
positive for straight leg and bent leg raising. Based on his examination findings and a May 7,
2004 MRI scan, Dr. Jaffe opined that appellant’s bulging disc at L4-5, lumbar spinal stenosis on
the right and left side, disc desiccation disease of the lumbar spine and narrowing of the disc
space were a traumatic injury secondary to her job and secondary to the occupational injuries she
sustained in November 2001. Dr. Jaffe also indicated that secondary to this, appellant had
underlying anxiety, stress syndrome and depression. He stated that she was under a lot of
discomfort and opined that appellant was totally disabled because of the problems that occurred
two and half years ago. Dr. Jaffe explained that, when appellant was originally injured in
November 2001, she had moderate dextroscoliosis at the throacolumbar junction, which
contributed to her discomfort. He also indicated that the disc bulge at L4-5 with neural
foraminal stenosis as well as the recent disc space narrowing at L4-6 and desiccation of the disc
and hemangiomas within the L3 and T12 vertebral bodies would cause appellant’s discomfort.
Dr. Jaffe indicated that appellant’s condition has deteriorated and she was unable to do any
quality work on a sustained time basis because of her recurrent pain, which would worsen as her
condition deteriorated.
In a May 26, 2005 report, Dr. Jaffe opined that appellant’s low back condition was
aggravated by her work injury on November 13, 2001. After relating a history of appellant’s
limited-duty positions following her 2001 back injury, Dr. Jaffe stated that, when she got the
position involving heavy lifting in 2004, the job reaggravated the back problems she originally
had in 2001. He indicated that her back problems were partially resolved, but because of the job
she was given in 2004 the problems returned and appellant suffered an exacerbation of the
problems with her back that were originally present in 2001. Dr. Jaffe opined that appellant’s
April 2004 injury was not new, but was medically and causally directly related to the injuries she
had in 2001. Thus, he opined that appellant’s April 2004 injury was a reexacerbation of her
injuries from 2001.
By decision dated January 30, 2006, an Office hearing representative affirmed the
April 27, 2005 decision. He found that appellant failed to supply sufficient medical evidence to
establish that she developed a medical condition causally related to the accepted employment
activities of April 26, 2004.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of the claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 When an employee
claims that he sustained a traumatic injury in the performance of duty, he must establish the fact
of injury, namely, he must submit sufficient evidence to establish that he experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged and that such
event, incident or exposure caused an injury.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
established incident or factor of employment.7
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.8
ANALYSIS
The Office accepted that appellant was a federal employee and that she timely filed her
claim for compensation benefits. The Office also accepted that the workplace incidents occurred
as alleged during the single work shift which started April 25, 2004 and ended April 26, 2004.
3

5 U.S.C. §§ 8101-8193.

4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

5

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term injury as
defined by the Act refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

John W. Montoya, 54 ECAB 306 (2003).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

Appellant must, however, submit probative medical evidence on the issue of causal relationship
between a diagnosed condition and the employment incident.
The medical evidence presented does not contain a rationalized medical opinion
establishing that the work-related incidents caused her diagnosed conditions. In July 19 and
August 16, 2004 reports, Dr. Jaffe noted the history of appellant’s original work injury, presented
findings and opined that appellant was totally disabled from work due to her pain. He opined
that appellant’s disability and the deterioration of her condition occurred because of her original
work injury. However, Dr. Jaffe did not offer a specific opinion on causal relationship with
respect to the accepted work events of April 26, 2004. In a March 16 and May 26, 2005 reports,
he provided some support for causal relationship. However, these reports are insufficient to
establish appellant’s claim because Dr. Jaffe did not provide adequate medical reasoning to
explain how any of the diagnosed conditions were caused or aggravated by the April 26, 2004
work incident. In his March 16, 2005 report, Dr. Jaffe noted that appellant has multiple
lumbosacral disc disease and that, after her original injury, appellant was transferred to an area
which involved a lot of heavy lifting and being on her feet all the time. He addressed causal
relationship by stating that the repetitive actions appellant had been doing and the fact that she
worked a double shift “seemed” to irritate her back muscles and cause the pain to stay constant.
However, this opinion is equivocal and speculative as to the causal relationship between
appellant’s back conditions and the accepted work events of April 26, 2004. The Board has held
that speculative and equivocal medical opinions regarding causal relationship have no probative
value.9 Dr. Jaffe further stated that appellant’s April 26, 2004 work injury caused her lower and
mid-back to worsen over time. However, Dr. Jaffe does not provide a full explanation for
concluding that the April 26, 2004 work incident caused or aggravated the diagnosed
conditions.10 He did not explain the medical reasons by which lifting heavy trays on April 26,
2004 would have caused a lumbosacral disc disease condition to worsen. In the May 26, 2005
report, Dr. Jaffe opined that appellant’s position involving heavy lifting reaggravated the back
problems she originally had in 2001 and that the April 2004 injury was a reexacerbation of her
2001 injuries. While Dr. Jaffe referenced appellant’s previous work injury, he did not
adequately explain the medical reasons of how the April 26, 2004 employment incident would
have contributed to the diagnosed conditions and why the diagnosed conditions would not
instead have been the result of the natural progression of the preexisting conditions. His May 26,
2005 report is deficient as it addresses causal relationship with regard to appellant’s lumbosacral
spine conditions in a manner similar to that contained in the March 15, 2005 report. The Board
finds that Dr. Jaffe’s reports are of limited probative value as they do not sufficiently explain the
medical reasoning supporting his opinion on causal relationship.
9

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
10

In order to be considered rationalized medical evidence, a physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the claimant’s specific employment factors. Victor J. Woodhams,
41 ECAB 345, 352 (1989); Steven S. Saleh, 55 ECAB 169, 172 (2003). The Board has held that a medical opinion
not fortified by medical rationale is of little probative value. Caroline Thomas, 51 ECAB 451, 456 n.10 (2000);
Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

5

Accordingly, appellant has not met her burden of proof in establishing a causal
relationship between her diagnosed conditions and the April 26, 2004 incident.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that her
back condition is causally related to the employment incident on April 26, 2004.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 30, 2006 is affirmed.
Issued: May 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 15-294
Issued: April 24, 2015

Case Submitted on the Record

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

JURISDICTION
On November 21, 2014 appellant, through counsel, filed a timely appeal from a
November 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established more than 21 percent permanent impairment of
the right lower extremity and more than 10 percent permanent impairment of the left lower
extremity.
On appeal counsel asserts that the November 3, 2014 OWCP decision is contrary to law
and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 16, 1998 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim alleging that work duties caused deterioration in the cartilage of both knees.
OWCP accepted aggravation of right knee osteoarthritis and hallux rigidus of the left great toe as
employment related.2
On October 10, 2005 appellant filed a schedule award claim and submitted an August 31,
2003 report in which Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon, advised that
maximum medical improvement had been reached and that, in accordance with the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides),3 appellant had 10 percent impairment of the right lower extremity
and 2 percent impairment on the left. Dr. Andrea Young, an OWCP medical adviser, concurred
with Dr. Kaffen’s assessment and advised that maximum medical improvement was reached on
August 31, 2003.
By decision dated January 26, 2006, appellant was granted a schedule award for 10
percent impairment of the right lower extremity and 2 percent impairment of the left lower
extremity.
On February 8, 2011 Dr. Scott F. Holder, a Board-certified orthopedic surgeon,
performed authorized total knee replacement arthroplasty on the right. In an April 13, 2011
treatment note, Dr. Darrin J. Kuczynski, a Board-certified orthopedist, saw appellant for
reevaluation of his left great toe. He diagnosed left foot pain secondary to hallux rigidus and
osteoarthritis of the left great toe. In a May 12, 2011 treatment note, Dr. Holder reported right
knee physical examination findings of good alignment, minimal effusion, flexion to 115 degrees
and full extension. He noted that an x-ray that day demonstrated a well-fixed cemented total
knee replacement in good alignment with no sign of wear or loosening. Dr. Holder concluded
that appellant was doing well following right knee surgery and released him to full duty as of
May 16, 2011, with follow-up in one year.
On September 1, 2011 appellant filed a schedule award claim. He submitted a
November 16, 2011 report in which Dr. William N. Grant, a Board-certified internist, noted his
complaint of pain in the right knee and left great toe and advised that appellant had reached
maximum medical improvement. Dr. Grant stated that physical examination demonstrated wellhealed surgical scars present on the right knee and left great, synovial change present to both,
and limited range of motion of the right knee. He diagnosed primary osteoarthritis of the left leg
and left hallux rigidus. Regarding the right knee, Dr. Grant indicated that, in accordance with the
sixth edition of the A.M.A., Guides,4 appellant had a class 3 impairment under Table 16-3, Knee
2

Appellant was removed from the employing establishment effective August 26, 2000 and, following arbitration
was reinstated to full duties as a letter carrier in late 2001 or early 2002. He resigned from the employing
establishment in March 2002 due to health issues and applied for disability retirement. Since that time appellant has
been employed as a substitute teacher, welder’s assistant, and in the home repair business.
3

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

4

Id. at (6th ed. 2008).

2

Regional Grid. He found grade modifiers of 3 for functional history and 4 for physical
examination. Dr. Grant concluded that appellant had a net adjustment of 1, for 40 percent right
lower extremity impairment. For the left hallux rigidus, he indicated that under Table 16-2, Foot
and Ankle Regional Grid, appellant had modifiers of 2 for functional history and physical
examination, with a net adjustment of 2, for 7 percent impairment for the hallux rigidus
diagnosis. Dr. Grant concluded that appellant had a total 44 percent lower extremity impairment.
On May 10, 2012 Dr. Holder noted that appellant was making satisfactory progress
following the right total knee replacement. Right knee examination demonstrated full extension
and flexion to 125 degrees, no effusion or calf tenderness, no varus or valgus laxity, no edema,
numbness, or tingling in the lower extremity.
On February 7, 2013 Dr. Kuczynski reported a complaint of left foot and great toe pain.
Examination showed diminished left great toe range of motion, diffuse soft tissue swelling, pain
on extremes, mild tenderness, capsular thickening, and hypertrophic change with no redness,
sensory loss, or skin abnormality. Dr. Kuczynski diagnosed left foot pain secondary to hallux
rigidus and osteoarthritis of the left great toe.
In a February 28, 2013 report, Dr. Nabil F. Angley, a Board-certified orthopedic surgeon
and OWCP medical adviser, noted his review of the record, including Dr. Grant’s report. He
advised that Dr. Grant’s findings did not correspond with those of Dr. Holder and recommended
referral for a reliable impairment rating.
In March 2013 OWCP referred appellant to Dr. Manhal Ghanma, Board-certified in
orthopedic surgery, for a second opinion evaluation. Appellant did not keep the scheduled
appointment, and in an April 10, 2013 decision, OWCP denied his claim for an additional
schedule award. He timely requested a hearing.
At the hearing, held on August 19, 2013, appellant testified that he had a work emergency
and could not attend the scheduled appointment. He stated that he would be willing to attend a
rescheduled examination. In a December 12, 2013 decision, an OWCP hearing representative
affirmed the April 10, 2013 decision but noted that appellant would now attend a second opinion
impairment evaluation.
An appointment with Dr. Ghanma was rescheduled and appellant attended. In a
February 6, 2014 report, Dr. Ghanma noted the history of present illness as provided by
appellant, his review of the medical record and statement of accepted facts, and appellant’s
complaints of pain, balance issues, and the inability to squat or kneel. Right knee examination
demonstrated flexion to 110 degrees, no crepitation or instability, and no significant abnormality
of gait, stance, or balance. Examination of the left great toe revealed diminished range of
motion, evidence of a small spur on the left first metatarsal head, and no sensory deficits.
Dr. Ghanma diagnosed status post right total knee replacement, hallux rigidus of the left great
toe, and subjective complaints of mild discomfort. He advised that, in accordance with the sixth
edition of the A.M.A., Guides, under Table 16-3, appellant had a class 2 right lower extremity
impairment with a default value of C for 25 percent impairment. Dr. Ghanma found grade
modifiers of 1 for functional history, based on a mild problem, 1 for physical examination based
on examination findings, and 1 for clinical studies, since appellant’s studies confirmed the

3

diagnosis. He applied the net adjustment formula which yielded 0 and concluded that appellant
had 25 percent right lower extremity impairment.
Regarding the left great toe, Dr. Ghanma advised that under Table 16-2, for arthritis of
the first metatarsophalangeal joint, appellant had a class 1 impairment with a default value of C
for seven percent impairment. He found grade modifiers of 1 for functional history, based on a
mild problem, 1 for physical examination, based on examination findings, and 3 for clinical
studies, because x-ray demonstrated a severe problem. Dr. Ghanma applied the net adjustment
formula which yielded +2 placing appellant in grade E for 13 percent left lower extremity
impairment. He concluded that maximum medical improvement was reached six months after
the total knee replacement or by August 8, 2011.
On March 13, 2014 Dr. Morley Slutsky, an OWCP medical adviser, Board-certified in
occupational medicine, reviewed Dr. Ghanma’s report and advised that maximum medical
improvement had been reached on February 6, 2014, the date of Dr. Ghanma’s examination. He
disagreed with Dr. Ghanma’s impairment rating. Regarding the right knee, Dr. Slutsky noted
that appellant’s knee was stable with good hardware placement, and range of motion was within
normal limits. He agreed that appellant had a class 2 impairment and that he had a grade 1
modifier for functional history. Dr. Slutsky, however, referred to Table 16-7, and indicated that
the appropriate grade modifier for physical examination was 0, stating that range of motion and
stability were used to place appellant into the correct diagnosis and class and should not be used
again, and that no other deficits were identified. He referred to Table 16-8 and indicated that a
modifier for clinical studies was not applicable because an objective study was used to place
appellant into the correct diagnosis and this could not be used again. Dr. Slutsky concluded that
under Table 16-3, appellant had a final grade of A for 21 percent right lower extremity
impairment.
Regarding the left great toe, Dr. Slutsky agreed with Dr. Ghanma that under Table 16-2
appellant had a class 1 impairment for joint arthritis, based on a zero millimeter joint space,
which had a default value of 10 percent. He also agreed that appellant had grade modifiers of 1
for both functional history and physical examination. Dr. Slutsky, however, disagreed that
appellant had a modifier of 3 for clinical studies, noting that the objective study was used to
place appellant into the correct diagnostic class and therefore, under Table 16-8, it could not be
used as a clinical studies modifier and was therefore not applicable. He applied the net
adjustment formula and concluded that appellant had a net adjustment of zero and, therefore, a
10 percent impairment of the left lower extremity due to great toe joint arthritis.
By decision dated March 20, 2014, appellant was granted a schedule award for an
additional 11 percent impairment of the right lower extremity and an additional 8 percent
impairment of the left lower extremity, for a total of 21 percent and 10 percent respectively. The
award was to run for 54.72 weeks from February 6, 2014 to February 24, 2015. Appellant,
through counsel, timely requested a hearing.
In reports dated April 30 and May 2, 2014, Dr. Holder noted that appellant was doing
well with regard to his right knee. Knee examination demonstrated no antalgic gait, full
extension and flexion to 110 degrees, with possible minimal recurvatum. There was no varus or
valgus laxity, no calf tenderness, and no palpable Baker’s cyst. Appellant had good ankle

4

dorsiflexion strength, and alignment was neutral. Right knee x-rays demonstrated a well-fixed
knee replacement in good position with no evidence of wear or component loosening.
Dr. Holder advised that appellant was unable to walk for prolonged periods of time due to the
knee surgery and diagnosed right knee osteoarthritis.
At the hearing, held on September 15, 2014, appellant’s attorney maintained that
Dr. Slutsky was biased and prejudiced and that he improperly lowered impairment percentages
found by Dr. Ghanma.
By decision dated November 3, 2014, an OWCP hearing representative affirmed the
March 20, 2014 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability,
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment
rating choices, including choices of diagnoses from regional grids and calculations of modifier
scores.12 Section 16.2a of the A.M.A., Guides, provides that, if the class selected is defined by

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

A.M.A., Guides, supra note 4 at 4, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 494-531.

11

Id. at 521.

12

Id. at 23-28.

5

physical examination findings or clinical studies results, these same findings may not be used as
grade modifiers to adjust the rating.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.14 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.15
ANALYSIS
The Board finds that appellant has failed to establish more than 21 percent permanent
impairment for the right lower extremity and 10 percent permanent impairment for the left lower
extremity, for which he received schedule awards. OWCP accepted that he had sustained
employment-related aggravation of right knee osteoarthritis and aggravation of hallux rigidus of
the left great toe. On January 26, 2006 appellant was granted a schedule award for 10 percent
impairment of the right lower extremity and 2 percent impairment on the left, and on March 20,
2014 he was granted a schedule award for an additional 11 percent impairment of the right lower
extremity, for a total 21 percent impairment, and an additional 8 percent impairment of the left
lower extremity for a total 10 percent impairment.
Regarding the right lower extremity impairment for appellant’s knee condition, the Board
finds Dr. Grant’s November 16, 2011 report of diminished probative value. It is unclear which
diagnosis he used to determine the right knee impairment. Dr. Grant indicated that appellant had
a class 3 impairment. If he used the “total knee replacement” diagnosis, under Table 16-3, a
class 3 impairment would be classified as a severe problem with a fair result, i.e., fair position,
mild instability and/or mild motion deficit.16 The only physical examination finding that
Dr. Grant reported was synovial change in the right knee and limited knee range of motion.
Section 16.3b and Table 16-7 of the A.M.A., Guides describe the rating process for the physical
examination modifier.17 Dr. Grant identified a grade modifier of 4 for physical examination. A
grade 4 modifier represents a very severe problem with very severe palpatory findings,
consistently documented and supported by observed severe abnormality. Multidirectional
instability of the knee should be present with very severe range of motion deficit.18 Moreover,
Dr. Grant’s physical examination findings did not correlate with those reported by Dr. Holder,
appellant’s attending orthopedic surgeon. On May 12, 2011 Dr. Holder reported right knee
physical examination findings of good alignment, minimal effusion, flexion to 115 degrees, and
13

Id. at 500.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
15

Peter C. Belkind, 56 ECAB 580 (2005).

16

Supra note 4 at 511.

17

Id. at 517

18

Id.

6

full extension. Table 16-23 indicates that 115 degrees of flexion is normal.19 Dr. Grant did not
provide specific range of motion measurements. Dr. Holder also noted that an x-ray
demonstrated a well-fixed cemented knee replacement in good alignment with no sign of wear or
loosening. Dr. Grant described no x-ray findings. Dr. Holder concluded that appellant was
doing well following the right knee surgery and released him to full duty as of May 16, 2011,
with follow-up in one year. Finally, Dr. Grant did not include a mathematical explanation of the
net adjustment formula. The Board has long held that an attending physician’s report, such as
Dr. Grant’s November 16, 2011 report, is of little probative value where the A.M.A., Guides are
not properly followed.20
Regarding the hallux rigidus of the left great toe, while Dr. Grant indicated that under
Table 16-2 appellant had modifiers of 2 for functional history and physical examination, the
physician did not identify a specific diagnosis or a class of impairment. He merely concluded
that appellant had a net adjustment of 2 for seven percent impairment of the left lower extremity.
Therefore, as Dr. Grant again did not properly follow the A.M.A., Guides, his calculation for
appellant’s left great toe impairment is of diminished probative value.21
Dr. Ghanma, an OWCP referral physician, advised on February 6, 2014 that knee
examination demonstrated flexion to 110 degrees, no crepitation or instability, and no significant
abnormality of gait, stance, or balance. He diagnosed status post right knee replacement surgery
and advised that, in accordance with the sixth edition of the A.M.A., Guides, under Table 16-3,
appellant had a class 2 impairment with a default value of C for 25 percent impairment.22
Dr. Ghanma found grade modifiers of 1 for functional history, based on a mild problem, 1 for
physical examination based on examination findings, and 1 for clinical studies, since appellant’s
studies confirmed the diagnosis. He applied the net adjustment formula which yielded 0 and
concluded that appellant had 25 percent right lower extremity impairment for the diagnosis of
right total knee replacement. As noted in the discussion below, Dr. Ghanma also failed to
properly apply the A.M.A., Guides.
Dr. Slutsky, an OWCP medical adviser, reviewed the medical record, including
Dr. Ghanma’s report and provided proper rationale for the percentage of right lower extremity
impairment.23 In a March 13, 2014 report, he stated that maximum medical improvement was
reached on February 6, 2014, the date of Dr. Ghanma’s examination. Dr. Slutsky noted that
appellant’s knee was stable with good hardware placement, and that range of motion was within
normal limits. He agreed with Dr. Ghanma that appellant had a class 2 impairment and a grade 1
modifier for functional history. Dr. Slutsky referred to section 16.3b and Table 16-7, and
19

Id. at 549.

20

Richard A. Neidert, 57 ECAB 474 (2006).

21

Id.

22

On an attached impairment worksheet, Dr. Ghanma identified that class for a total knee replacement diagnosis
as class 1. He, however, identified the grade as C with a default value of 25 percent which, under Table 16-3, is a
class 2 impairment. Supra note 16.
23

See Federal (FECA) Procedure Manual, supra note 14.

7

properly indicated that if range of motion and stability were used to place appellant into the
correct diagnosis and class, they should not be used again.24 As no other deficits were identified,
he found no grade modifier for physical examination. Dr. Slutsky also disagreed with
Dr. Ghanma regarding the clinical studies grade modifier. He referred to section 16.3c and Table
16-8 and properly found that a modifier for clinical studies was not applicable because an
objective study was used to place appellant into the correct diagnosis and could not be used
again.25 Dr. Slutsky concluded that, under Table 16-3, appellant had a final grade of A for 21
percent right lower extremity impairment.
Dr. Slutsky agreed with Dr. Ghanma that under Table 16-2, for arthritis of the first
metatarsophalangeal joint, appellant had a class 1 impairment. Dr. Ghanma incorrectly noted
that the default value for this diagnosis was seven percent. Dr. Slutsky, however, properly
identified the default value as 10 percent.26 He also agreed with Dr. Ghanma that appellant had
grade modifiers of 1 for both functional history and physical examination. Dr. Slutsky, however,
disagreed that appellant had a modifier of 3 for clinical studies, noting that the objective study
was used to place appellant into the correct diagnostic class and properly found that, in
accordance with section 16.3c and Table 16-8 of the A.M.A., Guides, this could not be used as a
clinical studies modifier and was therefore not applicable.27 He properly applied the net
adjustment formula and concluded that appellant had an adjustment of zero for 10 percent
impairment of the left lower extremity due to great toe joint arthritis.
The Board concludes that the medical adviser applied the appropriate sections of the
A.M.A., Guides to the clinical findings of record.28 Therefore, OWCP’s November 3, 2014
decision affirming the March 20, 2014 schedule award is proper under the law and facts of this
case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish more than 21 percent impairment of
the right lower extremity and 10 percent impairment on the left, for which he had previously
received schedule awards.

24

Supra note 4 at 517.

25

Id. at 518-19.

26

Id. at 511.

27

Id. at 518-19.

28

See W.M., Docket No. 11-1706 (issued March 20, 2012).

8

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, AL, Employer
__________________________________________

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

Docket No. 19-0058
Issued: June 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 9, 2018 appellant filed a timely appeal from a May 4, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated April 3, 3018, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUES
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 2, 2018 appellant, then a 56-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained bilateral carpal tunnel syndrome and bilateral wrist
1

5 U.S.C. § 8101 et seq.

sprains due to factors of her federal employment. She noted that she first became aware of her
claimed conditions on December 21, 2017 and realized their relation to her federal employment
on December 27, 2017. Appellant did not stop work.
By development letter dated January 16, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish the claim. It advised her of the type of medical and factual
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to respond.
In response, appellant provided an undated statement describing repetitive upper extremity
activities while sorting, casing, and delivering mail over a 17-year period. She attached an official
position description and her hand-drawn diagrams of postal equipment.
Appellant also submitted medical evidence consisting of a report dated December 27, 2017
in which Dr. William C. Ferguson, a treating physician Board-certified in emergency medicine,
noted her history of bilateral wrist pain for approximately one month, worsened that day when she
felt sharp pain in both wrists when she attempted to lift a tray while at work. She denied acute
trauma. On examination Dr. Ferguson observed bilaterally positive Tinel’s signs at the wrist. He
diagnosed bilateral wrist strains and bilateral carpal tunnel syndrome, “aggravated by repetitive
use of wrist then attempting to lift reported heavy tray.” Dr. Ferguson prescribed medication and
bilateral wrist splints.
In a statement dated January 17, 2018, A.M., an employing establishment health and
resource management specialist, contended that appellant’s conflicting histories of injury cast
doubt on the validity of her claim. Appellant had advised Dr. Ferguson that she injured her wrist
lifting a heavy tray, but described a repetitive overuse condition in her statement to management.
By decision dated April 3, 2018, OWCP accepted that the implicated employment events
had occurred as alleged. It denied the claim, however, finding that the medical evidence of record
did not explain how and why the accepted employment duties would have caused or contributed
to the development of bilateral carpal tunnel syndrome or bilateral wrist sprains.2
On May 1, 2018 appellant requested reconsideration. She contended, in her letter dated
April 27, 2018, that she had performed repetitive hand motions at work for 17 years. Appellant
noted that she had “enclosed medical information.” However, no additional medical evidence of
record accompanied her request for reconsideration.
By decision dated May 4, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim, finding that the evidence submitted was insufficient to warrant a merit
review of its April 3, 2018 decision.

2
OWCP noted that, if appellant attributed the claimed conditions to lifting a tray of mail on December 21, 2017,
she should file a traumatic injury claim (Form CA-1).

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.4 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.5 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her reconsideration request, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, and she did not advance a new and relevant legal argument not
previously considered.
Accordingly, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(3).
With her reconsideration request, appellant submitted her supplemental statement in which
she asserted that repetitive hand motions at work had caused the claimed bilateral wrist conditions.
This evidence, while new, is not relevant to the underlying medical issue of causal relationship.7
Evidence which does not address the particular issue under consideration does not constitute a
basis for reopening a case.8 Appellant’s supplemental statement cannot qualify as medical
evidence establishing a causal relationship between her diagnosed conditions and the employment
factors as lay opinions have no probative value on medical issues.9 She also noted that she had
3
20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
4

Id. at § 10.607(a).

5

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

6

Id. at § 10.608(b); H.H., supra note 3; E.R., Docket No. 09-1655 (issued March 18, 2010).

7

B.E., Docket No. 18-0849 (issued January 7, 2019); W.C., Docket No. 15-1878 (issued January 6, 2016); see
James A. Long, 40 ECAB 538 (1989).
8

See F.B., Docket No. 18-1039 (issued December 6, 2018).

9
See Don A. Bergau, Docket No. 05-944 (issued July 7, 2005); Susan M. Biles, 40 ECAB 420 (1988) (where the
Board held that the statement of a layperson is not competent evidence on the issue of causal relationship).

3

“enclosed medical information” with her request for reconsideration. However, no additional
medical evidence was received. Thus, appellant is also not entitled to a review of the merits of her
claim based on the third above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal appellant contends that her work duties must have caused the claimed bilateral
wrist conditions as she only performed repetitive upper extremity movements while at work.
However, as explained above, the Board lacks jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 14, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, ATWATER POST
OFFICE, Atwater, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0880
Issued: January 21, 2022

Case Submitted on the Record

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

On May 17, 2021 appellant filed a timely appeal from December 18, 2020 and April 21,
2021 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 21-0880.
On August 12, 2020 appellant, then a 62-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 8, 2020 she injured her right shoulder and the middle
top of her back when lifting and stacking a pallet onto a dock while in the performance of duty.
She stopped work on August 8, 2020 and returned on August 11, 2020.
By decision dated December 18, 2020, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as she described.
By decision dated April 21, 2021, OWCP’s hearing representative modified the
December 18, 2020 decision, finding that appellant had established that the employment incident
occurred as alleged, but affirmed the denial of the claim, finding that the medical evidence of
record was insufficient to establish a causal relationship between appellant’s diagnosed conditions
and the accepted August 8, 2020 employment incident. In this decision, it referenced a prior claim,

OWCP File No. xxxxxx679 that was accepted for cervical strain, right shoulder sprain, and left
wrist sprain.1
The Board has duly considered the matter and concludes that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. 2 For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 3 In the present claim, appellant
alleged injuries to her right shoulder and middle top of her back. OWCP had previously accepted
that she sustained cervical strain (whiplash), right shoulder sprain, and left wrist sprain under
OWCP File No. xxxxxx679. However, it has not administratively combined the present claim
with her previously accepted claim pertaining to right shoulder sprain.
As OWCP File No. xxxxxx679 also involves a claim to appellant’s right shoulder, for a
full and fair adjudication, the Board will remand the case to OWCP to administratively combine
the case records for OWCP File Nos. xxxxxx663 and xxxxxx679.4 Following this and other such
further development as OWCP deems necessary, it shall issue a de novo decision.5

1

The Board notes that appellant filed a prior claim in OWCP File No. xxxxxx 679 for a traumatic injury sustained
on September 29, 2001.
2

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

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

4

Id.

5

R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., supra note 3.

2

IT IS HEREBY ORDERED THAT the April 21, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: January 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
Anniston, AL, Employer
__________________________________________

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

Docket No. 16-1525
Issued: January 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 22, 2016 appellant filed a timely appeal from a June 28, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss causally
related to factors of his federal employment.
FACTUAL HISTORY
On August 28, 2015 appellant, then a 59-year-old crane operator, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral hearing loss as a result of
1

5 U.S.C. § 8101 et seq.

employment-related noise exposure. He described his employment as a mobile equipment
repairer which entailed working on army vehicles exposing him to noise of 85 decibels (dB) or
above. Appellant further explained that he was exposed to loud noise from disassembling
different types of tanks, metal, and the use of impact wrenches. He first became aware of his
illness on January 6, 2011 and of its relationship to his employment on June 17, 2015.
By letter dated September 4, 2015, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment, and all nonoccupational exposure to noise. OWCP requested that the employing
establishment provide noise survey reports for each site where appellant worked, the sources and
period of noise exposure for each location, and whether he wore ear protection.
In a July 29, 2015 hearing loss questionnaire, appellant reported that from February 23,
2004 through November 4, 2012 he worked as a heavy mobile equipment repairer where he was
exposed to noise from hammers, chisels, impact wrenches, slings, cleaners, and job booms.
From November 4, 2012 to the present, he worked as a crane operator with noise exposure to
overhead bridge cranes. Appellant reported having worn ear protection beginning February 23,
2014 which was currently required by his position. He noted no other exposure to noise other
than cutting grass. Appellant described his injury noting vertigo, dizziness, headaches, ear
popping, and ringing in the ears.
An official position description and notification of personnel action (SF-50) forms was
submitted for crane operator and heavy mobile equipment repairer.
In support of his claim, appellant submitted medical reports dated January 6, 2011
through June 17, 2015 from Dr. Fred A. McLeod, a Board-certified otolaryngologist. In his
January 6, 2011 report, Dr. McLeod reported that appellant complained of ringing in his ears as a
result of industrial noise and machinery over the years. He diagnosed sensorineural hearing loss
and tinnitus and recommended appellant wear hearing protection. In 2015 appellant complained
of pressure in his left ear and the feeling that it was stopped up. He underwent left myringotomy
with pressure equalizer tube placement on May 18, 2015. Dr. McLeod diagnosed chronic left
otis media, Eustachian tube dysfunction, bilateral sensorineural hearing loss, chronic resolved
otitis externa, and allergic rhinitis.
Audiograms and hearing conservation data dated January 28, 2004 through August 3,
2015 were submitted. Audiometric testing dated January 28, 2004 revealed the following dB
losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 5, 5, 20, and 30 for the right ear and 15, 10,
20, and 35 for the left ear.
The employing establishment reported that from 2004 to 2012, appellant was exposed to
an average of 99.9 dB as a mechanic repairer with pneumatic tools ranging from 90 to 120 dB
and grinding from 80 to 116 dB. From 2012 to 2015, appellant was exposed to an average of
88.7 dB as a crane operator with impact tools ranging from 85 to 120 dB and heavy equipment
from 70 to 110 dB.

2

On October 1, 2015 OWCP referred appellant to Dr. Jack W. Aland, a Board-certified
otolaryngologist, for a second opinion evaluation. It prepared a statement of accepted facts
addressing his federal work history from 2004 to present and exposure to employment-related
noise.
On October 14, 2015 appellant was examined by Dr. Aland. In his report, Dr. Aland
noted that appellant had mild bilateral sensorineural hearing loss at the beginning of his federal
career. When comparing the audiometric findings present at the beginning of his exposure, he
reported that appellant did not show a sensorineural loss in excess of what would be normally
predicated on the basis of presbycusis. Dr. Aland noted that appellant’s workplace exposure was
sufficient as to intensity and duration to have caused the hearing loss in question. He reported no
other significant noise exposure and noted a left myringotomy tube placement. Audiometric
testing performed that same date revealed the following dB losses at 500, 1,000, 2,000, and
3,000 Hz: 5, 10, 25, and 35 for the right ear and 10, 10, 25, and 35 for the left ear. Speech
reception thresholds were 15 dB bilaterally and word reception thresholds were 100 percent
bilaterally. Dr. Aland diagnosed bilateral sensorineural hearing loss which he opined was not
caused by appellant’s federal employment because he had little decrease in hearing over the 11
years of his federal employment.
By decision dated November 3, 2015, OWCP found that the evidence of record failed to
establish that appellant’s hearing loss was causally related to the accepted employment factors.
On November 16, 2015 appellant requested reconsideration of OWCP’s decision. In
support of his claim, he resubmitted medical and factual evidence already of record.
In an undated narrative statement, appellant reported that a specific incident in April 2015
affected his hearing after an M88 tank backfired, causing a single loud noise while he was
directly above it in his crane. He reported seeking emergency services that same date after he
began to experience a popping sensation and became light headed and nauseous. Appellant
reported that, even prior to this incident, he began to experience a threshold shift in his hearing
from 2013 to 2014. He argued that Dr. Aland reported that the workplace exposure was
sufficient as to intensity and duration to have caused the hearing loss in question which
supported his occupational disease claim.
The only new medical evidence received was a December 3, 2015 report from
Dr. McLeod. Dr. McLeod provided findings on physical examination and diagnosed Eustachian
tube dysfunction, chronic otitis media, active stable Meniere’s disorder, sensorineural hearing
loss improving, and allergic rhinitis.
By decision dated March 18, 2016, OWCP denied modification of the November 3, 2015
decision, finding that the medical evidence of record failed to establish that his hearing loss was
causally related to workplace noise exposure.
On June 10, 2016 appellant again requested reconsideration. In an accompanying
narrative statement, he reported that two new medical reports, as well as a new audiologic
evaluation, established his claim for hearing loss.

3

In an undated handwritten note, Dr. McLeod reported that appellant had mild-tomoderate high-frequency sensorineural hearing loss which could well be related to prior noise
exposure. He explained that this noise exposure could be a result of prior work history and
without hearing tests prior to, directly, or immediately after the exposure, it would be
irresponsible to say with absolute certainty the cause of the hearing loss.
In an April 13, 2016 medical report, Dr. Beatrice Smith, a Board-certified
otolaryngologist, reported that appellant had complained of decreased hearing loss since 2011
and presented for a second opinion evaluation. Audiometric testing performed that same date
revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 10, 15, 30, and 40 for the
right ear and 15, 5, 25, and 40 for the left ear. Speech reception thresholds were 20 dB on the
right and 15 dB on the left and word reception thresholds were 100 percent bilaterally.
Dr. Smith diagnosed mild-to-moderate high frequency bilateral sensorineural hearing loss.
By decision dated June 28, 2016, OWCP denied modification of its prior decision,
finding that the evidence of record failed to establish that appellant’s hearing loss was causally
related to his federal workplace noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;4 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Michael R. Shaffer, 55 ECAB 386 (2004).

5

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

4

Appellant has the burden of establishing by weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.7 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.9
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.10
ANALYSIS
OWCP accepted that appellant was exposed to hazardous employment-related noise at
the Aniston Army Depot during his employment from February 2004 to present. The issue is
whether he established employment-related hearing loss due to noise exposure during his federal
employment. The Board finds that this case is not in posture for decision.11
OWCP properly referred appellant to Dr. Aland, a Board-certified otolaryngologist, for a
second opinion evaluation. Dr. Aland diagnosed bilateral sensorineural hearing loss, noting that
appellant had mild bilateral sensorineural hearing loss at the start of his federal employment. He
acknowledged that appellant’s workplace exposure was sufficient as to intensity and duration to
have caused the hearing loss in question. However, Dr. Aland reported that appellant’s
sensorineural hearing loss was not in excess of what would be normally predicated on the basis
of presbycusis. He opined that appellant’s bilateral sensorineural hearing loss was not due to his
federal employment as there was little decrease in hearing over the 11 years of his federal
civilian employment.
The Board finds that Dr. Aland’s report is speculative and equivocal in nature and, thus,
of little probative value.12 Dr. Aland opined that appellant’s hearing loss was due to presbycusis
rather than noise exposure, noting little decrease in hearing over the past 11 years of federal
employment. While he agreed that the workplace exposure was sufficient as to intensity and
duration to have caused appellant’s hearing loss, he did not explain why, despite the accepted
7

Stanley K. Takahaski, 35 ECAB 1065 (1984).

8

See John W. Butler, 39 ECAB 852, 858 (1988).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

10

Phillip L. Barnes, 55 ECAB 426, 441 (2004).

11

H.C., Docket No. 16-0740 (issued June 22, 2016).

12

Michael R. Shaffer, 55 ECAB 386 (2004).

5

noise exposure, appellant’s hearing loss was due to presbycusis, or why the occupational noise
exposure apparently had no effect on appellant’s hearing. The Board has consistently held that a
medical opinion not fortified by rationale is of limited probative value.13 OWCP’s procedure
manual provides that in cases involving a preexisting or underlying condition, a second opinion
specialist should be asked to provide a rationalized opinion as to whether the preexisting or
underlying condition was aggravated by employment factors and, if so, whether the aggravation
was temporary or permanent.14 Dr. Aland’s brief opinion on the issue of causal relationship
lacks adequate medical rationale to support that appellant’s hearing loss was not caused or
contributed by his employment.15 OWCP did not seek clarification from Dr. Aland with regard
to whether appellant’s workplace noise exposure caused any aggravation of his condition.16
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.17 When OWCP selects a physician for an
opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the
physician’s report and to have a proper evaluation made.18 Because it referred appellant to a
second opinion physician, it has the responsibility to obtain a report that will resolve the issue of
whether his hearing loss was caused or aggravated by his federal employment.19 Because
Dr. Aland’s opinion fails to provide a rationalized opinion on the cause of appellant’s hearing
loss, OWCP failed in having relied upon his opinion as a basis for denying appellant’s claim for
compensation.
On remand, OWCP should refer appellant together with an updated SOAF and complete
medical record, to an appropriate second opinion physician for an opinion on whether appellant’s
work-related noise exposure caused or aggravated his hearing loss.20 Following this and any
other further development deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s occupational disease claim.

13

A.D., 58 ECAB 149 (2006).

14

Federal (FECA) Procedure Manual, Part 3 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.9(e) (September 2010).
15

D.F., Docket No. 09-1080 (issued December 7, 2009).

16

When it refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, OWCP should secure an appropriate report on the relevant issues. See Ayanle A. Hashi, 56 ECAB
234 (2004) (when OWCP refers a claimant for a second opinion evaluation and the report does not adequately
address the relevant issues, OWCP should secure an appropriate report on the relevant issues); Mae Z. Hackett, 34
ECAB 1421 (1983) (where OWCP referred appellant to a second opinion physician, it has the responsibility to
obtain an evaluation which will resolve the issue involved in the case).
17

P.K., Docket No. 08-2551 (issued June 2, 2009).

18

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

19

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

20

S.E., Docket 08-2243 (issued July 20, 2009).

6

CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
developed bilateral sensorineural hearing loss causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: January 9, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7